R v LEH

Court of Criminal Appeal (NSW)|2020-04-03|Before: McCallum JA, Johnson J, Adamson J, Callum JA

Judgment

McCALLUM JA: This is an appeal brought by the Director of Public Prosecutions under s 5F(3A) of the Criminal Appeal Act 1912 (NSW) against a pre-trial ruling in criminal proceedings against the respondent for a series of alleged sexual offences.
The respondent is not referred to by name in this judgment as it is apprehended that, even though he and the child complainant are not related, to identify him would identify her, contrary to the proscription of s 578A of the Crimes Act 1900 (NSW) and s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW).
Section 5F(3A) provides: 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.

Circumstances in which the appeal is brought

The complainant was aged 16 years when the offences are alleged to have been committed and has a neurodevelopmental disorder. The current indictment includes 20 counts alleging offences committed in March and April 2011 as follows: 1. as against the respondent alone, four counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW), in each case with an alternative count of sexual intercourse with a person with a cognitive impairment contrary to s 66F(3) of the Act; 2. as against the respondent and NH jointly, a further five counts of aggravated sexual assault in each case with an alternative count of sexual intercourse with a person with a cognitive impairment; 3. as against the respondent and NH each separately, a count of aggravated indecent assault contrary to s 61M(1) of the Act.
Importantly for present purposes, count 16 (with the alternative count 17) is based on an allegation that NH (the respondent's wife) performed cunnilingus on the complainant in the presence of the respondent, aided and abetted by him. Count 18 (with the alternative count 19) relates to a further sexual offence allegedly committed by NH aided and abetted by the respondent during the same incident. Count 20 alleges a further offence by the respondent as part of the same incident. I will return to the facts alleged to support those counts.
The respondent and NH were arraigned on the joint indictment on 14 October 2019 and a trial with a jury commenced later that week. However, the jury was subsequently discharged, apparently due to inappropriate conduct by a juror. For practical reasons the trial had to be stood over to 13 July this year. However, before adjourning the matter, the trial judge took the commendable course of giving rulings on the admissibility of so-called "pretext calls" made by the complainant's mother, AD. The judge excluded two portions of one of the calls under s 137 of the Evidence Act 1995 (NSW).
The single ground of appeal specified in the Notice of Appeal is that the judge erred in excluding those two portions. The Director submitted that it is not necessary in such an appeal to demonstrate House v The King error ((1936) 55 CLR 499; [1936] HCA 40). The submission was not expanded upon but was apparently based on the proposition that the question raised by s 137 is one to which there can only ever be one correct answer, albeit one about which reasonable minds may differ. The Director relied in that context on the decision of the High Court in The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846 (a case concerned with tendency evidence) where the Court said at [61]: "The question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ. Consequently, in an appeal against conviction to an intermediate court of appeal, or on a subsequent appeal to this Court, it is for the court itself to determine whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was."
The Director also referred to Kadir v The Queen; Grech v The Queen [2020] HCA 1 at [9]; (2020) 94 ALJR 168, but that decision, which was concerned with s 138 of the Evidence Act dealing with the exclusion of improperly or illegally obtained evidence, leaves the question open without discussion of the passage in Bauer set out above. In any event, the Director submitted that it is not necessary to resolve that question because House v The King error is established.
The Notice of Appeal sought orders vacating the trial judge's ruling and an order in effect determining the question raised by s 137 by ruling the two disputed portions of the pretext call to be admissible. However, in response to a concern raised by Johnson J at the hearing of the appeal, the Director accepted that the appropriate course, if the appeal succeeds, would be for the Court to confine the relief granted to orders allowing the appeal and setting the trial judge's ruling aside, for the reasons explained by Simpson AJA in R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 at [63] (Johnson and Harrison JJ agreeing at [65] and [66]).
I note in that context that the respondent's submissions addressed the question whether the admissions might alternatively have been excluded in exercise of the discretion under s 90 of the Evidence Act. That was not argued before the trial judge and does not appear to be the basis on which his Honour excluded the evidence. The discretionary power conferred by s 90 properly reposes in the trial judge and should not be exercised for the first time on appeal.

The pretext calls

The prosecution case includes a number of lawfully intercepted telephone calls. The extent to which that material was admissible was largely the subject of agreement between trial counsel at the previous trial. The ruling against which the appeal is brought concerned a pretext call made by AD to the respondent on 15 October 2015. The disputed portions are relied upon by the prosecution as admissions by the respondent that he was present when NH had non-consensual sexual intercourse with the complainant.
The prosecutor contends that the admissions are relevant to counts 16 to 20 referred to above. The prosecution case concerning those counts may be summarised as follows. The complainant was staying for the weekend at the respondent's farm. Both accused were present, as was NH's daughter (LEH's step-daughter) GH, who was good friends with the complainant. The respondent poured alcoholic drinks for all of the women. The complainant consumed around 7 drinks within a short space of time. NH went into the bedroom and the respondent told the complainant to go into the bedroom as well. She did and he followed her. GH said that she wanted the complainant to stay with her but NH said "she is a big girl, she can do what she wants" and GH was shut out of the room. LEH provided cannabis to the complainant; GH was banging on the door saying she didn't want the complainant in there; ultimately the complainant was told to take her clothes off and NH performed cunnilingus on her (counts 16 and 17). NH then inserted her finger into the complainant's vagina (counts 18 and 19). The respondent then got undressed and kissed the complainant before having sexual intercourse with NH in the complainant's presence (count 20).
The case against the respondent on counts 16 to 19 requires the prosecutor to prove that the respondent was present when those offences were committed by NH as the principal offender and that he was intentionally assisting or giving encouragement to NH to commit those offences.
Importantly, the allegation that GH was present to witness some of the events leading up to the offences rests exclusively on the evidence of the complainant. The prosecutor anticipates that GH will deny witnessing any such incident.
The first portion of the pretext call excluded by the trial judge is as follows: "AD: So according to [the complainant] and both (sounds like) GH, um, they - you got them drunk and stoned and you and NH both had sex with them. Respondent: No, I didn't (sighs). What NH did was completely separate. In fact, what the story is, and as I stick to it - NH was doing something very inappropriate. I pulled her off and stopped it, which I thought was the right thing to do. One silly mistake, one thing but what she did was worse. AD: Well you tell me what you, what NH did and I'll tell you what, what both girls have told me. Respondent: Well she went down on her. She went into the kid's bedrooms and started going down on her and I came in and pulled her off. AD: That's not what GH said happened. Respondent: Oh, probably not. AD: GH said that you slammed the door in her face and told her to fuck off. Respondent: No I didn't, I pulled NH off. I got her away from her 'cause it was wrong. AD: According to GH um… (emphasis added)"
During argument before the trial judge, the prosecutor indicated that the words underlined above ("with them") were not part of the tender and would be removed. It will be necessary to return to that issue.
The second excluded portion is as follows: "AD: And so GH's now lying too? Like she told me that, that um, one time NH was going down on [the complainant] and that she, that she slammed the door and, and, and you guys were both in there and, and she said, ah GH said um, 'You know this is wrong, get off her, you know this is wrong' and was trying to break the door down. Respondent: Yeah that's what she says but what happened was I went in there and pulled 'em apart, make 'em all get dressed and kicked - put my foot up their arses. Because I, that stuff, I remember that incident and I was in the shower. I was in the shower and GH banged on the door and told me what was going on and I came in and fixed that. You know, GH like… AD: Okay so, so you're telling me that this was not instigated by you, this was instigated by NH - is this correct? Respondent: That stuff, yes. And [the complainant] was not willing, a willing player in that and every time it happened I stepped in and stopped it. And I asked [the complainant] if she wanted to go to the Police with it and she told me at the time 'No'."
The Director argued that the two portions taken together contained admissions by the respondent that he was present while NH performed cunnilingus on the complainant and that he knew that the complainant did not consent to that conduct.

The trial judge's findings

In relation to the first portion, the trial judge found that the probative value of the material was "quite slender" because: "although [the respondent] seems to make an admission as to being present while there was sexual misbehaviour by NH towards the complainant, the balance of what he says is consistent with him acting not as an accessory but as somebody who not only did not join in the conduct but [was] also trying to actively stop it."
His Honour also found that the first portion was unfairly prejudicial to the respondent because of the "compound proposition" put to him by AD that he and NH "both had sex with them". That reflected an acceptance of trial defence counsel's submission that the respondent's answers to the compound proposition "proceed on the basis of an assertion that cannot be unwound from the potential admissions". The Director contends that, in so holding, his Honour overlooked the prosecutor's indication that the words "with them" were not included in the tender but I am not persuaded that is the case. His Honour could equally have considered that the severance of those words did not remove the prejudice.
On the strength of that analysis, the trial judge ruled that the first portion was inadmissible. His Honour noted that the ruling had "the effect of removing from the evidentiary matrix material that was not admissible against NH", thereby eliminating the need to give a "very careful judicial direction asking the jury to disregard that material". In light of the fact that the trials have now been separated, that is no longer a concern.
In relation to the second portion, the trial judge noted AD's account, in her opening question to the respondent, of what she had heard from GH: "Like she told me that, that um, one time NH was going down on [the complainant] and that she, that she slammed the door and, and, and you guys were both in there and, and she said, ah GH said um, 'You know this is wrong, get off her, you know this is wrong' and was trying to break the door down."
The trial judge compared that account with the evidence of police as to what GH had reported to them at the time of the initial complaint and concluded that AD's account seemed to be "an unfair embellishment". That reasoning conflated what GH had said to police with what she had said to AD. It did not account for the possibility that GH had given a fuller account to AD than to police. The prosecutor had indicated to the judge that it was anticipated that AD would give evidence at the trial that her account to the respondent faithfully reflected what both GH and the complainant had said to her (AD). Accordingly, on the prosecution case, AD's account to the respondent was not an "unfair embellishment" but rather was capable of indicating that GH (now apparently a reluctant witness) has given different accounts to different people.
As to probative value, the judge applied a similar analysis as in respect of the first portion, saying: "Similarly, although it could be relied on to establish [the respondent's] presence in that way, the content of the material is consistent with him asserting that he was not an accessory. [There is] nothing that can be characterised in the material as being an admission to being an accessory. I am ultimately persuaded that the probative value of the material is low against the danger of unfair prejudice given the apparent potential for there to have been a misstatement made to [the respondent] by [AD] during that portion of the call."
The trial judge did not explicitly refer to s 137 of the Evidence Act in giving either ruling. However, as was common ground at the hearing of the appeal, it is clear enough that the rulings invoked that provision, having regard to the language of his Honour's findings set out above.
In short, the Director's argument is that the trial judge acted on a wrong principle. The Director also submitted that the judge arguably mistook the facts as to the first portion (if his Honour overlooked the excision of the words "with them") and that, as to the second portion, he did mistake the facts.

Principles to be applied in assessing the probative value of the evidence

The Director's argument on this issue was framed by reference to authorities concerning evidence which is capable of giving rise to competing inferences. The Director submitted that the trial judge was obliged to disregard any competing inference and take the evidence at its highest by assuming that it would be accepted by the jury on the basis asserted by the prosecution, in accordance with the approach approved by the High Court in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14.
So much was common ground; the respondent's position was that the disputed portions were not admissible as admissions and, alternatively, that the trial judge did not have regard to competing inferences but rather concluded that, taking the evidence at its highest in accordance with established principle, its probative value was outweighed by the danger of unfair prejudice.
One of the authorities relied upon by the Director was the decision of this Court in R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238, at [155]-[156] per Simpson J (as her Honour then was), R A Hulme J and Barr AJ agreeing at [219] and [220]. Burton was a case with some similarity to the present in that it was an appeal by the Director under s 5F(3A) against a ruling excluding a pretext call in a sexual assault case (in that case a call made by the complainant). However, unlike the present case, the admission relied upon by the Director in Burton was equivocal, consisting of apologies by the accused to the complainant. The trial judge took the view that, while the statements were capable of being understood as admissions, an alternative explanation was available (a sense of guilt at having become involved in a consensual encounter in the aftermath of an evening of drinking and socialising). Justice Simpson considered it illogical "that the existence of an alternative interpretation robs the evidence of the respondent's words of probative value, or diminishes its probative value": at [156].
If the present case falls to be considered in accordance with those principles, I would accept the Director's argument that a wrong approach was taken by the trial judge. In my respectful opinion, it is clear that his Honour considered that the probative value of the admissions was diluted by the exculpatory explanation. By analogy with the reasoning in Burton, that reflects a wrong approach. However, I would analyse the error in a slightly different way.
In order to be admissible as an admission, the evidence did not have to amount to an admission that the respondent acted as an accessory to a crime committed by NH. To put the matter another way, it did not have to be an admission as to criminality, or as to all of the elements required to be proved by the prosecutor. If the evidence was capable of amounting to an admission as to only one element of the offence, that was enough for it to be admissible. Indeed, it did not even have to be an admission as to an element of the offence (although here it clearly was). The Dictionary to the Evidence Act defines admission 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."
An admission could be adverse to the interests of an accused person without going so high as to admit an element of the offence; the only threshold requirement is that it be relevant within the meaning of s 55.
The excluded portions in the present case were not ambiguous in their capacity to inform the assessment of the probability of the existence of a fact in issue in the proceeding. The respondent's statements indicated unequivocally that he was present on an occasion that matched the prosecution case in support of count 16. Accordingly, the statements amounted to admissions as to at least one element of the prosecution case against the respondent on counts 16 to 19 (presence at the time of the offence) and arguably also as to his belief as to whether the complainant was consenting. His exculpatory statement to the effect that, rather than intentionally assisting or giving encouragement to NH, he was trying to stop her from committing the offences was irrelevant to that analysis. If the evidence was capable of amounting to an admission as to a single element of the offence, it was probative and, subject to any exclusionary rule, prima facie admissible pursuant to s 81(1) of the Evidence Act.
If the statement admitting presence is admissible, the exculpatory explanation made in relation to that admission is also admissible as a statement to which it is reasonably necessary to refer in order to understand the admission: s 81(2). But that does not derogate from the admissibility of the admission. In my respectful opinion, in having regard to the exculpatory explanation as part of that analysis, the trial judge acted on a wrong principle.
The respondent disputed the characterisation of what he said in the pretext call as an admission. However, his position on that issue appears to have been based on a mistaken understanding of the prosecution case concerning count 16; the facts summarised as relating to that count in par 19 of the respondent's written submissions instead describe the prosecution case in support of count 14. I do not have any doubt that the excluded evidence contains admissions as to a fact in issue relevant to count 16.
The respondent submitted that even if the statements were admissible as admissions, the trial judge did not erroneously consider and adopt a competing inference in his assessment of probative value of that evidence but rather simply accepted that its probative value was outweighed by the danger of unfair prejudice to the respondent.
I do not accept that submission. In relation to the first portion of the pretext call, the trial judge found that "although [the respondent] seems to make an admission as to being present while there was sexual misbehaviour by NH towards the complainant, the balance of what he says is consistent with him acting not as an accessory but as somebody who not only did not join in the conduct but also [tried] to actively stop it. (emphasis added)"
In relation to the second portion of the pretext call, the trial judge found that "although it could be relied on to establish the respondent's presence in that way, the content of the material is consistent with him asserting that he was not an accessory. (emphasis added)"
Those passages indicate that the trial judge either embarked on the forbidden course of weighing competing inferences or else proceeded on the basis that, in order to be an admission, a statement must admit criminality without equivocation or exculpatory explanation.

Alleged mistake of fact as to portion one

As already noted, the prosecutor indicated to the trial judge that the words "with them" were not included in the tender and should be excluded from the first portion of the pretext call as follows: "AD: So according to [the complainant] and both (sounds like) GH, um, they - you got them drunk and stoned and you and NH both had sex with them …"
Without the deletion, the sentence implies that GH and the complainant told AD that the respondent had sex not only with the complainant but also with GH. Any suggestion that the respondent had sex with his step-daughter would of course carry a danger of unfair prejudice to him.
The difficulty is that the deletion changes the sense of the proposition put, as it suggests that the respondent "got [the two girls] drunk and stoned" and then had sex with his wife. In my respectful opinion, the trial judge was right to be concerned that the proposition put to the respondent by AD was a compound proposition that could not be unwound. Whilst it is helpful and appropriate for the prosecutor to seek to address objections by excision of the offending words, there is an obvious risk in doing that in such a way as to change the sense of the words said or an allegation put. Unseen complications could flow from adopting such an approach.
However, it did not follow that the whole portion had to be excluded. It could have been admitted on the basis that the compound proposition would be excluded and the evidence instead introduced by an agreed leading question to the informant, rather than re-writing the conversation.
Contrary to the conclusion apparently reached by the trial judge, I am not persuaded that the respondent's answers were informed by the compound proposition put in the question. His answers completely overlook any allegation concerning GH and focus exclusively on the complainant ("well she went down on her"). Further, as submitted by the Director, the excluded portion must be considered in the context of the whole of the call, which related to AD's concern to know what had happened to the complainant.

Alleged mistake of fact as to portion two

The trial judge's assessment of the danger of unfair prejudice in respect of the second portion was based on a concern that AD had misrepresented what GH had said to police. The trial judge had regard to the statement and official police notebook of the officer on duty at the relevant Police Station when AD took the complainant and GH to report the alleged sexual offences. He concluded that the assertions made by AD to the respondent in the second portion were "an unfair embellishment".
The difficulty with that conclusion is that it assumes that AD was purporting to confront the respondent with what GH had said to the police. However, it appears that she was rather simply stating what she herself had been told by GH.
The material before this Court includes a witness statement prepared by AD on 4 June 2015. That statement does not include the account represented by AD to the respondent in the pretext call as to what GH had told AD. However, during argument before the trial judge, the prosecutor stated that AD would give evidence at the trial that GH had said those things to her. As indicated during the hearing of the appeal, if the prosecutor proposes to adduce evidence from AD that GH and the complainant said things to her consistent with what she put to the respondent in the pretext call, a further statement will have to be served, if that has not occurred already.

Whether the ruling substantially weakens the prosecution's case

As already indicated, I am of the view that the exclusion of the two portions of the pretext call did substantially weaken the prosecution's case.
In my assessment, the answers given by the respondent in the excluded portions have high probative value. They demonstrate that the respondent was aware that NH engaged in sexual activity with the complainant, that he was present when that activity occurred and arguably that he was aware that the complainant was not consenting. They also provide support for the complainant's version of events to the extent she said that GH was banging on the door. The words "every time it happened" support the prosecution's case that sexual activity between NH and the complainant occurred on more than one occasion.
As submitted by the Director, the excluded portions of the pretext call would also enable the jury to assess the respondent's truthfulness during his interview with police. During that interview, he said that he had never witnessed any sexual activity between NH and the complainant.
Without the respondent's admission that he was present, the prosecution case in support of counts 16 to 20 falls into the category of "word against word" cases. A case that can be characterised in that way permits a broader attack of the credibility of the complainant and may require the judge to warn the jury "about the danger of acting upon the uncorroborated evidence of the complainant": R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [35], [81]; cf Keen v R [2020] NSWCCA 58.
I accept, as submitted by the respondent, that there is evidence of complaint but, in a "word against word" case, that scarcely takes the matter any further, a complaint also being the "word" of the complainant. The respondent's admissions in the present case, even if they only relate to one element of the accessorial liability offences, are powerful evidence in my view.
In reaching the conclusion that the ruling substantially weakened the prosecution's case I have had regard to the nature of the allegations (cunnilingus performed on a child by the mother of the child's close friend in the presence of the mother's husband). As submitted by the prosecutor, such allegations are of a kind many people would find shocking and perhaps difficult to believe. The respondent's admission is all the more powerful in that context; its exclusion all the more detrimental to the strength of the prosecution case.

Orders

For those reasons, the orders I propose are: 1. that the appeal be allowed; 2. that the primary judge's ruling excluding the two disputed portions of the pretext call between the respondent and AD on 15 October 2015 from page 37 to page 38 and page 41 be set aside.
JOHNSON J: I agree with McCallum JA.
ADAMSON J: I agree with the orders proposed by McCallum JA and substantially agree with her Honour's reasons.

Amendments 01 May 2023 - Publication restriction removed - judgment published 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: 01 May 2023

(2018) 100 NSWLR 314

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