R v N.K.S. [2004] NSWCCA 144 | Case summary

1 GROVE J: By legislative amendment taking effect from 14 February 2004 s 5F of the Criminal Appeal Act 1912 had added: "(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case." 2 N.K.S. (the respondent) is standing trial before Coolahan DCJ and a jury at Newcastle District Court upon an indictment charging crimes of a sexual nature committed upon his natural daughter. The offences are alleged to have occurred on a range of dates between 1 September 1980 and 30 October 1985. In short statement there are four counts of indecent assault, two counts of carnal knowledge and one count of sexual intercourse without consent. 3 The trial commenced on 3 May 2004. The Crown case was completed by 5 May save evidence which was proposed to be called from Helen Anglais, a psychologist who was in 1985 employed in the Catholic Education organization of the Diocese of Maitland. Senior Counsel for the respondent had notified objection to this evidence and it was agreed that her evidence should be taken first on voir dire. This was done. 4 On 6 May, his Honour ruled that the evidence desired to be tendered by the Crown was rejected. It suffices for present purposes to adopt this summary from his reasons for judgment: "The evidence as sought to be led by the Crown is contained in Miss Anglais' evidence on the voir dire yesterday. So far as 29 October 1985 is concerned, the Crown seeks to lead evidence from Miss Anglais that the accused said to her during the course of that session that he had sexual thoughts about his daughter. Miss Anglais said that he raised it in the context of what he felt was normal father/daughter relationship and sought her approval or confirmation that such thoughts were normal. However, she said that he made it clear at that stage that there had been no sexual contact or impropriety between he and his daughter." "So far as the consultation of 3 December (1985) is concerned, Miss Anglais said that this was an impromptu session, with the accused attending her rooms, unscheduled, hoping to see her. She described him as being in a state of anxiety. She saw him on that day. She said that during the course of the consultation the accused said that there had been sex with his daughter. She said that he said that there had been no penetration but mutual masturbation. She said that he told her that he had tried to stop and succeeded for about 12 months but that the complainant had paraded herself naked through the house and he saw that as enticing him and sexual relationships began again." 5 On that day (6 May) the Director of Public Prosecutions lodged an appeal pursuant to s 5F (3A) seeking the vacation of the judgment or order made by Coolahan DCJ. Such form of order is expressly provided for in s 5F(5)(a). 6 On 7 May the appeal was listed before this Court. A stay of the trial proceedings was granted to enable the correctness of the ruling to be tested: R v Pera [1999] NSWCCA 106. The material tendered consisted of a copy of the indictment and the transcript of trial to date including the learned trial judge's reasons for the subject ruling. 7 After hearing argument, the court ordered that the orders rejecting the evidence of Miss Anglais relating to the conversations allegedly had on 29 October and 3 December 1985 be vacated. The stay was lifted in terms which would enable the resumption of the trial on the next weekday, Monday 10 May. The Court indicated that its reasons would be published on 11 May which would, given the stage at which the trial had reached and would be anticipated to reach, be prior to his Honour's commencing to sum up to the jury. 8 The evidence proposed to be adduced from Miss Anglais is plainly admissible. It is probative of the nature of the relationship between the complainant and the respondent in terms of the conduct in which he engaged and his expressed feelings. Certainly the evidence does not purport to constitute admission of guilt of any of the specific counts in the indictment. The evidence is not tendered on that basis. It is tendered to corroborate the testimony of the complainant. 9 The evidence of the complainant did not encompass an act or acts of mutual masturbation but corroborative evidence need not mirror the detail of evidence to be corroborated. The essence of such evidence is well settled by authority e.g. Doney v The Queen 1990 171 CLR 207 @ 211. In the present case it is noteworthy that the respondent's case was put to the complainant: "Q. Let me suggest to you that each of the matters you've described, each of them, did not take place in the way you've described it, what do you say? A. I've told the truth and I have recounted everything to the best of my ability and I have been honest. These things did happen." 10 Senior Counsel confirmed that it was the respondent's case that no form of sexual congress ever took place between his client and the complainant. 11 The Crown case includes sufficient evidence to go to the jury, absent the testimony of Miss Anglais. As stated, the latter is corroborative evidence, that is, evidence to support, confirm or strengthen other evidence that the respondent committed the offences charged. The extracted summary of the proposed evidence of Miss Anglais amply demonstrates that the Crown case would be substantially weakened if her evidence was prevented from being called. 12 Coolahan DCJ expressed his concern that the jury would be "highly likely" to accept the evidence of Miss Anglais and use it impermissibly as an admission of guilt (of a count or counts charged in the indictment). Such a concern is readily able to be dealt with by appropriate direction. With respect of his Honour's view, I would expect it to be obvious to jurors that what the respondent said to Miss Anglais did not amount to admissions of guilt, or even refer to, matters specified in the charges and the way that a jury can use corroborative evidence can be explained in this case as it is frequently done in other cases. 13 Reference was made to the proposed testimony being comprehended within the notion of tendency evidence as that expression is used in the Evidence Act. It is not. Further reference was made to the exclusion of the evidence pursuant to s 137 of that Act. There is nothing in the material before this Court to justify the exercise of discretion to exclude the evidence. 14 The foregoing are my reasons for joining in the orders made on Friday 7 May. 15 Upon pronouncement of orders, application was made on behalf of the respondent for a certificate in respect of his legal costs pursuant to the Suitors Fund Act 1951. In R v Hookham (No 2) 1993 32 NSWLR 345 this Court granted a certificate to an unsuccessful respondent in respect of litigation brought before the Court by the Crown by way of stated case. More analogous to the present situation, in R v Rima [2003] NSWCCA 405 a certificate was granted to an unsuccessful respondent to a Crown appeal brought pursuant to s 5F(2) of the Criminal Appeal Act. The issue was the rejection of evidence of identification. Given those precedents and the present circumstances I would grant a certificate. In making that determination it is of some weight that this appeal is novel in the sense that the Court was informed by the Deputy Director of Public Prosecutions who appeared to prosecute the appeal that this was the first case in which the right vested by s 5F(3A) had been sought to be exercised. 16 In the passage through Parliament of what became the Crimes Legislation Further Amendment Act 2003 which introduced the provision, it was observed in the second reading speech that the Crown has no avenue of appeal against an acquittal which results from an erroneous evidentiary ruling but it was also said: "It is not desirable that criminal trials be unnecessarily disrupted for the purpose of appealing evidentiary rulings. It is therefore anticipated that the Crown would exercise this new appeal power only sparingly." 17 That observation is adopted and stressed. In the present case, the volume of evidence in the Crown case and the issues surrounding the proposed evidence rejected in the court below are in relatively limited volume and focus. It can be forecast that in other cases the volume of evidence may be large yet it will be the duty of this Court to examine it, and the disputed material, to determine for itself whether the prosecution case is eliminated or substantially weakened. A task involving a large volume of material may take proportionate time for hearing and determination yet a judge and jury may have to suspend the progress of the trial in the meantime. 18 It is not only by sparing use of the power to appeal by the Crown that such disruption should be avoided. An accused must be apprised by the committal process of the case that is intended to be made against him or her and of the evidence in support of it. It would be a rare occurrence for legal advisers not to be able to notify any objection and there is facility in all trial courts for pre trial determination of such objections. Any appeal following dissatisfaction with a pre trial ruling can then be determined without disruption of a current trial. I am conscious that this procedure would involve assessment of whether a Crown case is eliminated or substantially weakened by the absence of particular evidence in an anticipatory rather than actual context of the trial evidence but assessment in such a circumstance is far from impractical. 19 A formal order is made granting to the respondent a certificate under the Suitors Fund Act 1951 in respect of the costs of the appeal brought by the Crown pursuant to s 5F(3A) of the Criminal Appeal Act 1912 challenging the orders excluding evidence made by Coolahan DCJ on 6 May 2004. 20 HOWIE J: I have read in draft the reasons provided by Grove J and they are substantially the reasons why I agreed that the appeal should be allowed. I simply wish to add a few brief comments. 21 The evidence that could be given by Ms Anglais, as set out in the judgment of Grove J, was clearly evidence of the relationship between the complainant and the accused at a time roughly approximate to the alleged offences contained in the indictment and as such was plainly admissible. It is highly probative as corroboration of the complainant's account of the alleged sexual misconduct by the accused against her. There was nothing in the reasons given by the trial judge or in the material placed before this Court that provided any reasonable basis for the trial judge to reject it under s 137 of the Evidence Act. 22 Although his Honour purported to make a ruling on admissibility based upon a weighing of the probative value of the evidence against its unfairly prejudicial nature, that discretionary judgment was so flawed that it could not be sustained. In particular, his Honour's belief that the jury might misuse the evidence is without foundation. The jury were entitled to regard it as an admission of his sexual interest in the complainant when considering his denial of any sexual conduct between himself and her. The fact that the complainant gave no evidence of mutual masturbation was irrelevant. There is no reasonable prospect of the jury impermissibly using it as an admission of guilt of any offence charged or in any other way. His Honour's assessment of the unfairly prejudicial effect of the evidence as being "extremely high" does not bear scrutiny. 23 Although not referred to by the trial judge, Mr Dailly SC relied upon the nature of the evidence to be given by Ms Anglais in support of the rejection of the evidence. The argument was that, as the witness did not take down the actual words used by the accused at the time they were said and that she admitted to drawing conclusions from what he said, the admissions were unreliable. That is principally a matter for the jury. However, I have difficulty in understanding how a trained psychologist might erroneously infer that the accused was admitting to having indulged in mutual masturbation with the complainant when, consistently with the case to be presented to the jury, he had no sexual interest in the child at all. 24 Contrary to his Honour's view, I do not believe that there is anything in the nature of the evidence that would lead the jury to ignore appropriate directions from the trial judge as to the limited, but highly relevant, use to be made of it. 25 NEWMAN AJ: I have read the draft judgments of Grove and Howie JJ in this matter. I agree with the reasons they have given and the order proposed. **********

R v N.K.S.

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (4)

Cited By (7)