R v Knight

The respective rulings

1. His Honour accepted, on 3 November 2014, and did not the following day resile from this conclusion, that the evidence of A had significant probative value. The Crown's submission had been that the probative value lay in the manner of assault or modus operandi of the respondent, namely that each of the two girls was asleep and hence unable to consent at the time of the alleged offences. (A, of course, was not old enough to consent even had she been awake at the time.)
2. The respondent conceded on the application before Lerve DCJ that the evidence had probative value but submitted that it did not have significant probative value, pointing to: the lack of connection between the facts of the matters; that the incidents were some three years apart; that there was a difference in the ages of the complainants (T was 16 at the time of the alleged offences against her; A was 13); that there was a difference in the conduct complained of (there being no penetration in the case of A); and inconsistencies in the accounts given by A of the events involving her.
3. In ruling on the application, his Honour referred to what was said by Campbell JA (with whom Howie and Rothman JJ agreed) in R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451, namely that all that a tendency need to be, to fall within the chapeau to s 97(1)of the Evidence Act, is a tendency to act in a particular way, even if that tendency had not been shown to be manifest on very many occasions.
4. His Honour concluded that the probative value of the evidence outweighed its prejudicial effect and for that reason ruled that the evidence was admissible. His Honour also observed that very careful directions would need to be given about the use of the evidence.
5. What followed his Honour's ruling was that the respondent's Counsel then foreshadowed an application for an adjournment of the trial involving T - on the basis that it involved proof before the jury, beyond reasonable doubt, of the matters involving A, and placed the accused in an impossible position affecting his fundamental right to silence. Such an application was formally made the following day.
6. On that occasion, the respondent indicated that, in the forthcoming trial involving the alleged offences against A, there would be in issue a question of identification; a question of complaint and a question as to the surrounding circumstances of the alleged offence. The respondent argued that adducing the tendency evidence of A in the trial involving T would compromise his right to silence in the forthcoming trial involving A because, if he felt compelled to give evidence in the first trial (and no election to do so had been made by that stage), then any evidence he gave would be admissible in the subsequent trial.
7. His Honour did not accept the submission that any evidence the respondent chose to give in the T trial would necessarily be admissible in trial involving A. The Crown indicated that its position was that it would not be permissible for the Crown simply to tender in the trial concerning A whatever the respondent might say in the trial concerning T, assuming there was no admission made by the respondent at the first trial as to the conduct alleged against A.
8. The respondent also raised a concern as to the issue of contamination or concoction. In A's statement, though not in the paragraphs that the Crown had identified in the tendency notice, A referred to requests that had been made of her by the mother of L and M for her to make a statement as to the respondent's conduct ([23]). In effect, it was submitted by counsel then appearing before his Honour that cross-examination of A as to the delay in making of her complaint to the authorities and the circumstances in which it was ultimately made (namely, in response to the request by the mother of L and M) would bring in issues that would not otherwise be before the jury in an unfair and prejudicial way (presumably there referring to the allegations made by L and M).
9. The Crown submitted that this issue was a red herring and that there could be no issue of concoction or contamination because there had been an earlier complaint made by A to a friend some twelve months before.
10. His Honour indicated (at T 52.20) that it was the issue of contamination that had concerned him on 3 November 2014 and said that if the defence could persuade him that cross-examination of the mother of L and M would be inevitable, then he might be persuaded to revisit the ruling made the day before. His Honour made clear (at T 52.47) that this was the issue (i.e., contamination) that was exercising his mind at that stage.
11. There was then some discussion as to why the defence would need to cross-examine the mother of L and M (who the Crown did not propose to call) in circumstances where there had been an earlier complaint as to the alleged assault by A.
12. His Honour's apparent concern, as articulated during the course of the debate (at T 65.20), was that the defence would be entitled to cross-examine A as to her motive for coming forward and to put to her that it was a false allegation; and that such cross-examination could give rise to difficulties. His Honour indicated that he was not persuaded that the defence would inevitably cross-examine the mother of L and M but considered that there was a more fundamental issue as to the potential cross-examination of A.

His Honour's 4 November 2014 reasons

1. In his Honour's ex tempore reasons for his decision to reverse the ruling of the previous day, his Honour set out his understanding of the defence submissions to be: that the ruling had the effect of impacting significantly on the right to silence of the accused to the point where it was an abuse of process; that any evidence given by the accused in the trial relating to T would be admissible in the trial relating to the allegations brought by A; and that there was a very high prejudice to the accused because he would be compelled to give evidence not only to deny the allegations of T but also to deny the allegations of the tendency witness A. His Honour was not persuaded that the respondent's argument, thus stated, had any validity whatsoever.
2. His Honour then referred to the issue as to contamination. His Honour noted that there was evidence that would be led by the Crown to the effect that the tendency witness (A) had complained to a friend of hers at an earlier time but that there was no formal complaint to the authorities until 2012, after A had been approached by the mother of L and M.
3. His Honour did not accept that it was inevitable that counsel for the accused must cross-examine the mother of L and M. However, his Honour did consider that it was tolerably plain that what had been alleged by A would be denied by the accused and that counsel would be entitled to put to A in cross-examination that it was a false complaint and to cross-examine A as to the reasons for delaying the official complaint to the authorities.
4. His Honour considered that, on the face of it, the only reasonable interpretation that could be placed on [23] of A's statement was that she had made the formal complaint about the conduct of the accused only in response to a number of requests by L and M's mother, following disclosures by L and M in respect of the accused. His Honour said: It follows from that, it seems to me, that to properly represent the interest of the accused, [counsel for the defence] would need to cross-examine [A] as to the reasons of her delaying any formal or official complaint. The Crown argues that that difficulty can be overcome by [A] giving evidence to the effect that she came forward after speaking to a friend. It is all very well to say that juries will be told not to speculate but that, it seems, to be leaving the evidence in an unsatisfactory position and it would ultimately, in my opinion, deprive the accused of an appropriate area of cross-examination of a witness, which would seem significant.
5. His Honour noted that the admission of tendency evidence was in the nature of a discretion (referring in that context to what was said by Simpson J in R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308). His Honour concluded that the interests of justice were such that he should revisit the ruling on admissibility and said: … given what seems to me would be depriving an accused from a significant area and an important area of cross-examination of a significant witness, the interest of justice are such taken with other matters [which] cause[d] me some little disquiet or concern yesterday, I revisit my ruling and I exclude the evidence of tendency.
6. It is tolerably clear, from what his Honour said in his ex tempore reasons, that his Honour was not there revisiting the conclusion that the tendency evidence had substantial probative value. His Honour did not expressly state a conclusion that the probative value of that evidence did not substantially outweigh the prejudicial effect of the evidence, although his Honour referred more than once to revisiting the ruling as to the tendency evidence which would have required consideration of that issue. His Honour's invocation of the interests of justice seems to indicate that his Honour was there concluding that the evidence should be excluded under some general but not articulated discretion.
7. Clearly what concerned his Honour was the impact that admission of the tendency evidence would have on the ability of defence counsel to cross-examine A as to the reason for the delay in making her formal complaint (or, perhaps, as to the motivation for the making of the formal complaint), in support of the proposition that the allegation by A was a false allegation.

Jurisdiction

1. The Crown maintains that, although the evidence of T would be enough to establish the offence charged against the respondent, the case would be substantially weakened without the tendency evidence. It refers to R v Smith [2008] NSWCCA 247; (2008) 190 A Crim R 8 at [24] and R v GAC [2007] NSWCCA 315; (2007) 178 A Crim R 408 at [64]-[69].
2. In R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228, Spigelman CJ noted that even a case which is otherwise likely or very likely to succeed may be substantially weakened if evidence of cogency or force is withheld. His Honour said (at [40]) that the Court should determine whether a ruling on the admissibility of evidence substantially weakens the Crown case by asking whether or not that would be the effect, on the assumption that the jury accepted that evidence, as long as the evidence was fit to be left to the jury.
3. The significant probative force that this evidence has must mean that the Crown case will be substantially weakened if it is excluded. The Court therefore has jurisdiction to determine the appeal.

Determination of appeal

1. In Saoud v R [2014] NSWCCA 136, Basten JA (with whom Fullerton and R A Hulme JJ agreed), noted that for this Court to intervene in relation to a ruling as to the admissibility of tendency evidence there must be shown to be an error in the House v The King sense ([1936] HCA 40; (1936) 55 CLR 449 at 504 - 505), the decision of the trial judge as to whether or not the evidence is admissible being one based on an evaluative judgment bearing the characteristics of a discretionary exercise of power.
2. That being the case, what the Crown must establish to warrant appellate intervention in the House v R sense is that his Honour erred in his application or understanding of a relevant principle of law; made a material error of fact; failed to take into account a relevant consideration or conversely took into account an irrelevant consideration; or that his ruling was unreasonable or unjust so as to bespeak error of that kind.
3. No error was demonstrated in the manner in which his Honour dealt with the application to adduce tendency evidence on 3 November 2014. Nor was it submitted in this Court that it was not open to his Honour to revisit that interlocutory ruling.
4. The relevant error, to which the Crown points as warranting appellate intervention, is as to the assessment by his Honour on 4 November 2014 of the asserted prejudice that would be occasioned to the respondent if the tendency evidence were to be admitted.
5. The Crown maintains that it was not reasonably open for his Honour to determine that the proper interests of the accused required that A be cross-examined about the delay and motivation in making the official complaint to police and to conclude that if counsel for the accused did so cross-examine A then the jury would learn of other allegations, including the one of which the accused had been acquitted. It is submitted that his Honour's conclusion in this regard was based on an unrealistic assessment of the asserted prejudice.
6. The Crown submits that his Honour was required to assess the assertion of potential unfairness realistically. The Crown maintains that it clearly would not lead any evidence from A of her complaint to the mother of L and M and notes that it had not indicated any intention that the mother of L and M be called as a witness. It is submitted that if any explanation needed to be given as to the reason for the subsequent later report to police, after the complaint A had earlier made to a friend, it could be overcome by A giving evidence to the effect that she came forward after speaking to a friend.
7. Further, the Crown submits that, given the absence of any evidence of concoction and the speculative state of the evidence, it could never be in the interests of the respondent to cross-examine A as to the motivation for the delayed official complaint (in circumstances where there had been a recent complaint years before giving her statement to the police) and that no competent counsel would explore such an area.
8. The Crown maintains that there was nothing about the evidence of A sought to be tendered on the tendency application that made its potential for unfair prejudice incapable of being addressed by appropriate judicial direction.
9. When the matter was before his Honour on 3 November 2014, the perceived prejudice to the accused was put in general terms. No submission was made prior to the initial ruling as to difficulties that might ensue in the cross-examination of A if the evidence were to be admitted. His Honour referred to the obvious prejudicial effect that the evidence might have on the reasoning of the jury namely that if the respondent had previously acted in this fashion it was likely that he would have acted in the way the Crown alleges he acted on the occasion involving T.
10. In R v Ford, Campbell JA says (at [55]) that the difference between s 101 and s 137 in referring to prejudice is not one of substance. Similarly, in Sokolowskyj v R [2014] NSWCCA 55, Hoeben CJ at CL considered that the concept of "prejudicial effect" for the purposes of the balancing exercise required by s 101 of the Evidence Act, is to be understood in substantially the same way as "unfair prejudice" (see [47]).
11. At [48], his Honour noted three potential dangers of unfair prejudice in that case: first, that the jury would use the evidence in the way in which they were directed not to use it; second, that the jury would be so emotionally affected by the evidence that they would disregard the accused's account and would disregard the directions to assess the evidence in an unemotional manner; and, third, that the jury might be disinclined to give the accused the benefit of any reasonable doubt.
12. At [49], his Honour noted that the danger of unfair prejudice had been variously described in the cases and went on to refer to R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434 at [50] (where Barr J referred to a real danger in that case that the jury's recognition of the appellant's prior guilt was likely to divert them from a proper consideration of the evidence) and R v GAC (where Giles JA at [83] referred to the primary danger as being that, notwithstanding any directions given by the trial judge, the jury might reason no more rationally than that if the respondent had molested others he did the same to the complainant and that emotion and not rationality would govern).
13. In Saoud v R, Basten JA (at [59]) gave an indication of the kind of prejudicial effect that might be taken into account when carrying out the balancing exercise in s 101 of the Evidence Act in an applicable case: This was not a case in which the allegations involved a form of deviant behaviour inherently likely to raise prejudice; it was not a case in which there were uncharged acts and a risk that the jury would not assess those acts thoroughly according to the criminal standard before taking the allegations into account; it was not a case where there was a plethora of facts, which might give rise to confusion or distraction from the primary issues. Finally, it was not a case in which there was any issue of collaboration or contamination of the complaints, which would need to be assessed by the jury before determining what weight they might give to the evidence.
14. In the present case, his Honour had already taken into account what he considered to be the obvious prejudice of the jury applying impermissible tendency reasoning. This was not a case where there were uncharged acts; nor was it suggested that there was a plethora of facts that might cause confusion or distraction. It was not submitted that there were particular facts that gave rise to a risk of emotion infecting the jury's decision-making process.
15. The question of contamination or concoction was raised before his Honour (after the initial ruling that the evidence was admissible) and it was in relation to that aspect of the matter that his Honour expressed concern. If the issue was solely as to concoction or contamination that could have been tested on a voir dire of A's evidence.
16. His Honour's concern related not to the probative value of the tendency evidence or its reliability as such but as to whether, if it were to be admitted, the defence would be deprived of a proper opportunity to cross-examine on the motivation for A to make a formal complaint to the authorities.
17. His Honour accepted not only that the defence would inevitably wish to cross-examine A as to the delay in and motivation for, the making of her complaint to the authorities but also that this would prejudice the defence by bringing into the trial issues relating to the L acquittal. The latter does not necessarily follow.
18. The legal basis on which his Honour reversed the 3 November 2014 conclusion is not clear. The respondent submits that although the precise statutory basis for the finding with respect to prejudice was not referred to in the ruling, it is clear that his Honour considered the further matters referred to in his judgment, in weighing the prejudicial effect under s 101 of the Evidence Act. Alternatively, the respondent submits that ss 135 and 137 of the Evidence Act would have provided a further basis for his Honour to consider whether the consequences in respect of the conduct of the trial flowing from a decision to admit the evidence or to reject the evidence on the basis of prejudice to the accused.
19. As noted earlier, it is not clear that, in revisiting his earlier ruling, his Honour addressed the matters which were required to be balanced for the purposes of s 101 of the Evidence Act, taking into account the additional matters that the respondent had there raised. Error has therefore been shown. If his Honour was there reconsidering the balancing exercise that had earlier been carried out then, in having regard to a possible forensic decision of counsel as to the cross-examination of A about early complaint, he took into account an irrelevant consideration. It is not apparent that there was any relevant danger in admitting the five paragraphs of the statement identified in the tendency notice. Any danger of unfair prejudice would, on that hypothesis, arise from the forensic decision of the respondent's Counsel as to the cross-examination of A and the answers she might or might not give.
20. The difficulty in identifying the basis on which his Honour reversed his initial ruling on the tendency and coincidence evidence raises sufficient doubt as to his reasoning process to demonstrate error in the House v The King sense in relation to the ruling on 4 November 2014. What his Honour seems to have been doing on 4 November 2014 was not carrying out afresh the balancing exercise required by s 101 of the Evidence Act but, rather, was taking into account considerations that may or may not later become relevant depending on what particular course is taken by the respondent in relation to the cross-examination of A and what evidence is given by A.
21. The conclusion that his Honour erred in so doing does not necessarily preclude argument, perhaps on the basis of an application to exclude particular evidence under ss 135 or 137 of the Evidence Act, at a later stage in the trial as to the admissibility of particular evidence. I note that in R v Nassif [2004] NSWCCA 433, Simpson J, with whom Adams J and Davidson AJ agreed, expressed the obiter view that, in a criminal proceeding where s 101 of the Evidence Act has been applied in relation to tendency and/or coincidence evidence, there is little if any further room for the operation of either ss 135 or 137 of the Evidence Act. Whether this is a case where room for the subsequent operation of either those sections might arise is a matter for argument perhaps at a later day. Nevertheless, it demonstrates why it is not appropriate for this Court to make a ruling that the evidence is admissible. If there were to be an application made on some other basis or at some later time to exclude part or all of that evidence during the course of the trial that would be a matter to be determined in the principled exercise of the trial judge's discretion.
22. Moreover, there is some suggestion that the Crown may seek to join the trial involving T and A, in which case other considerations may become relevant.
23. The appropriate orders in my opinion are as follows: 1. Allow the Crown's appeal. 2. Set aside the decision on 4 November 2014 to exclude the tendency evidence identified in the Crown's tendency notice.
24. This will have the effect that his Honour's ruling of 3 November 2014 that the tendency evidence is admissible stands.
25. SIMPSON J: Pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW), the Director of Public Prosecutions ("the DPP") appeals against a ruling made in the District Court at Griffith on 4 November 2014. The ruling, as recorded in the judgment, was to exclude evidence of tendency upon which the DPP proposed to rely.
26. Section 5F(3A) permits an appeal by the DPP against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case.
27. No issue has been taken in the present appeal as to the capacity of the evidence substantially to weaken the prosecution case. Accordingly, this Court has jurisdiction to entertain the appeal.
28. The relevant facts are set out in the judgment of Ward JA, with which I agree. For the purposes of these observations, the material facts may be stated briefly as follows: 1. The respondent is charged with sexual offences against two women. Chronologically, the first offence is alleged to have been committed against a 13 year old girl (A) in 2010. Three offences are alleged to have been committed against a 16 year old girl (T) in 2013. 2. There are some points of similarity in the circumstances in which the offences are alleged by the DPP to have been committed. Equally, there are some divergences. 3. Trial dates had been fixed for separate trials of the allegations made by each complainant. The trial of the offences the subject of the allegations made by A was fixed to commence on 3 December 2014. (It was originally fixed to commence at the Wagga Wagga District Court on 12 May 2014, but was not reached.) 4. The trial of the charges the subject of the allegations made by T was fixed to commence (and did in fact commence) in the District Court at Griffith on 3 November 2014. 5. On 14 April 2014 the DPP served on the applicant's solicitor a notice under s 97 of the Evidence Act 1995 (NSW) of its intention to rely on tendency evidence in the trial concerning T's allegations. The tendency evidence identified in the notice was drawn from the statement of A, concerning the offence she alleged had been committed against her. 6. On 3 November 2014 a jury was empanelled. Following that, the issue of the admission of the proposed tendency evidence was canvassed. 7. On the same day, the trial judge ruled that the tendency evidence would be admitted. He gave reasons. In the course of giving reasons, he made the necessary findings under s 97 and s 101 of the Evidence Act. 8. After his Honour had ruled, defence counsel sought adjournment of the trial. The basis for this application was said to be that the respondent was, by the ruling that the tendency evidence would be admitted, placed at a tactical disadvantage in the trial. The asserted tactical disadvantages were the subject of detailed debate the following day, 4 November. At an early stage, the trial judge indicated that he thought the application was "a back door method of asking me to revisit the ruling I made yesterday". 9. The discussion continued, with defence counsel continuing to maintain that admission of the tendency evidence would have an adverse effect on the manner in which he conducted the respondent's defence, especially with respect to cross-examination of the tendency witness, A. It is unnecessary to go into the various assertions that were made. 10. At the conclusion of the debate, the trial judge delivered judgment. He addressed the difficulties it was contended the respondent would encounter in the cross-examination of witnesses. His conclusion was expressed as: "I revisit my ruling and I exclude the evidence of tendency."
29. The reasons for this determination are not clear. In particular, no findings were made concerning the issues posed by s 97 and s 101 of the Evidence Act. It is important to note that no application was made to his Honour to reverse the ruling he had made on 3 November. The application before him on 4 November was for adjournment of the trial of T's allegations.
30. That is sufficient, in my view, to warrant allowing the DPP's appeal and setting aside the order of 4 November. So to order would restore the judgment and order of 3 November, that the tendency evidence was admissible.
31. There is an additional reason for reaching the same conclusion. The statutory basis for the second ruling was not given and is not clear. But it is unlikely to have been the test required by s 97(1)(b) (which makes tendency evidence inadmissible unless the court thinks that the evidence, alone or in conjunction with other evidence, would have significant probative value). That is, in part, because the quality of the evidence had not changed overnight, from when his Honour made his first assessment; and from examination of the evidence from a realistic perspective, it must be concluded that its probative value was significant.
32. That leaves the test required by s 101. It seems to me most likely that his Honour was persuaded by the argument that, notwithstanding that the evidence had significant probative value, that probative value did not substantially outweigh its prejudicial effect. The prejudicial effect, so far as the rather diffuse argument put to his Honour can be understood, was that the applicant would be handicapped in his conduct of the trial concerning T's allegations, in his cross-examination of A, particularly as to her motive for making her allegations at the time that she did (which was some time after the event).
33. The DPP urged that this Court make an order that the evidence of A is admissible as tendency evidence in the trial of T's allegations. That, in my opinion, would be an inappropriate exercise of the Court's jurisdiction. The initial determination, of 3 November, was not the subject of any appeal or application for leave to appeal in this proceeding. The correctness or otherwise was not an issue in this Court. It has not been shown to have been affected by error.
34. I agree with the orders proposed by Ward JA.
35. DAVIES J: I agree with Ward JA and Simpson J.

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