R v SJRC

COUNSEL: D U Arnott SC - Applicant P Hamill SC - Respondent

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) - Applicant S E O'Connor - Respondent

IN THE COURT OF CRIMINAL APPEAL 2007/668

JAMES J ROTHMAN J HARRISON J

TUESDAY, 22 MAY 2007 R v SJRC Judgment 1 JAMES J: This is an appeal by the Director of Public Prosecutions pursuant to s 5F(3A) of the Criminal Appeal Act against a decision of his Honour Judge Goldring of the District Court made on 12 March 2007, ruling that evidence of two telephone text messages sent by the respondent to the appeal to a young woman ("the complainant") on 10 January 2006 would be inadmissible in a trial of the respondent on a number of charges of sexual offences allegedly committed by the respondent against the complainant on 6 January 2006, being a charge of indecent assault and three charges of sexual intercourse without the complainant's consent. After his Honour made his ruling on 12 March 2007 a trial of the respondent which had been fixed to commence in that week did not proceed.

The complainant's statement 2 The complainant made a statement to police on 3 February 2006 and I will briefly summarise parts of that statement. 3 The complainant and the respondent lived together, with some interruptions, between July 2002 and January 2006. A child was born to them in April 2003. 4 In about late December 2005 the respondent was charged with an unrelated offence and was admitted to a psychiatric hospital. At the hospital the respondent occupied a room by himself and had access to a shared bathroom. 5 While the respondent was in the hospital he telephoned the complainant and asked her to bring some of his clothes to the hospital and also to bring their child to visit him. 6 On 6 January 2006 the complainant went to the hospital with the child and with a friend of the complainant's, a woman KF. 7 At a certain stage during the visit on 6 January 2006 KF left the hospital room to obtain some food for the respondent, taking the child with her. While KF was away, the offences the subject of the charges were committed by the respondent. The respondent led the complainant into a bathroom and then into one of the cubicles in the bathroom. The acts of indecent assault and of sexual intercourse were performed by the respondent in the cubicle in the bathroom. The complainant did not consent to any of the acts. 8 The respondent and the complainant then went back into the respondent's room. KF returned and after the respondent had left to see a doctor, the complainant said to KF that "(the respondent) had pretty much forced me to have sex with him". 9 Over the next few days the respondent sent the complainant a number of text messages. In this judgment I will, when setting out the terms of a text message, reproduce the original spelling. The complainant said in her statement:- "at 03:48:06pm on the 9th January 2006 from +61427523446 saying "I'm sorry I did wat I did on Friday Is that u y didn't come in on Sunday. I'm very sorry luv u." 10 On 10 January 2006 the respondent sent the complainant another text message, to which I will refer later in this judgment. 11 On 3 February 2006 the complainant went to a police station and showed a detective the messages stored on her phone.

The police officer's statement 12 The police officer whom the complainant saw on 3 February 2006 made a number of short statements. I will summarise parts of these statements. 13 On 13 February 2006 the police officer took two mobile phones from the respondent. 14 On 15 February 2006 the police officer accessed the message bank of one of the phones taken from the respondent and transcribed the messages in the inbox and the outbox of text messages. This transcript of messages does not include any transcript of the message which the complainant says the respondent sent her at 3:48pm on 9 January 2006. 15 The transcript of outward text messages does include the two following messages:- 10 January 2006 19:53:16 "U no that sex is the main way that i no how to show u i love u i'm it was the way it was on Friday but i was hapy 2 c u & it was a week since mum funral i just" 10 January 2006 19:56:46 "I fucked up i did't no how 2 talk 2 u 4 that i would die 4 2 change i luv u with everything in & of me" 16 It was the admissibility at a trial of the respondent of these two text messages from the respondent on 10 January 2006, which was in issue before Judge Goldring.

Judge Goldring's judgment 17 Judge Goldring gave a judgment on 12 March 2007. 18 In his judgment his Honour noted a submission by the Crown that the evidence of the two text messages would corroborate the evidence of the complainant that non-consensual sexual acts had occurred between the respondent and the complainant on 6 January 2006 and would also corroborate the complainant's evidence about the text message which she said had been sent by the respondent on 9 January 2006. 19 His Honour noted submissions by counsel for the respondent that the two text messages lacked any probative value or, alternatively, any probative value they might have was outweighed by the danger of unfair prejudice to the respondent and, consequently, evidence of the two text messages should be excluded under s 137 of the Evidence Act. 20 In his judgment Judge Goldring discussed the concepts of "relevance" and "probative value". His Honour would appear to have concluded that the evidence had some probative value. 21 However, his Honour stated in his judgment that evidence "must be unambiguous, if it is to satisfy the tests in s 137". His Honour noted a submission by counsel for the respondent that there were a number of possible interpretations of the first of the text messages, including that it might refer, not to sexual conduct having taken place, but to an absence of sexual conduct on the preceding Friday. His Honour held that, the evidence being ambiguous, there was a danger of unfair prejudice to the respondent, which would outweigh any probative value the evidence had. Consequently, his Honour ruled that the evidence of the two text messages should not be admitted at the trial of the respondent on the charges. 22 There are two principal issues on this appeal, namely:-

1. Whether an appeal lies under s 5F(3A) of the Criminal Appeal Act
2. If so, whether the appeal should be allowed

To some extent, the two issues overlap.

1. Whether an appeal lies under s 5F(3A) of the Criminal Appeal Act 23 Section 5F(3A) of the Criminal Appeal Act provides as follows: "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". 24 Accordingly, under s 5F(3A) an appeal will lie, only if the decision or ruling sought to be appealed from "eliminates or substantially weakens the prosecution's case". 25 It is clear that Judge Goldring's ruling does not "eliminate" the prosecution's case, because the prosecution would still have the evidence of the complainant. The question for determination is whether his Honour's ruling "substantially weakens the prosecution's case". In determining this question, I am mindful of statements by this Court to the effect that the Crown should make only sparing use of the power to appeal conferred by s 5F(3A) (see R v NKS [2004] NSWCCA 144 at [18]) and that the provision is not intended to enable the Crown to appeal against any adverse evidentiary ruling (see R v Lameri [2004] NSWCCA 217 at [34]). 26 In R v Shamouil [2006] NSWCCA 112 it was held by Spigelman CJ, with the concurrence of the other members of the Court, that on an appeal under s 5F(3A) the Crown bears the onus of establishing that the exclusion of the evidence would substantially weaken its case (at [30]); that it is necessary to assess the strength of the Crown case, apart from the disputed evidence, in order to determine whether the exclusion of the disputed evidence would substantially weaken the Crown case (at [31]); and that "even a case which is otherwise likely, even very likely, to succeed may still be "substantially weakened" if evidence of cogency or force is withheld (at [37])". 27 Although other authorities on the meaning of the word "substantial" in other contexts were put before this Court, I consider that the Court should adopt the criterion stated by the Chief Justice in Shamouil for determining whether the prosecution case would be "substantially weakened". 28 In the present case, if the evidence of the text messages of 10 January 2006 is excluded, the Crown could still rely on the evidence of the complainant about the events of 6 January 2006 and the text message of 9 January 2006 and evidence of a prompt complaint by the complainant to KF. Such a Crown case could well succeed. 29 However, such a Crown case would depend for its success almost entirely on the jury's forming a favourable view of the credibility of the complainant. It can be anticipated that at a trial the credibility of the complainant would be attacked, on grounds including the complainant's obvious hostility to the respondent and what, it would be suggested, is the inherent unlikelihood of the respondent engaging in sexual acts with the complainant in a bathroom in a hospital to which other persons had access. 30 In my opinion, the two text messages, which occurred only three minutes apart and without any intervening message from the complainant, are clearly open to the interpretation urged by the Crown that the respondent was admitting that on Friday 6 January 2006 sexual acts had occurred between the respondent and the complainant and that the respondent now regretted what he had done. The respondent's expressed regret is capable of forming part of the basis for an inference that the respondent knew that the complainant had not consented to the sexual acts. 31 In these circumstances, I consider that evidence of the two text messages, is evidence of cogency and force within the criterion in Shamouil and the exclusion of that evidence would "substantially weaken" the prosecution case.

32 As I indicated earlier, Judge Goldring held that evidence of the two text messages had little probative value and that such probative value as the evidence had was outweighed by the danger of unfair prejudice and, consequently, evidence of the two text messages should be excluded. 33 An application by a judge of s 137 of the Evidence Act does not, strictly speaking, involve the exercise of a discretion. In applying s 137 a judge is required to assess the probative value of the evidence in question and to assess the danger of unfair prejudice and then to weigh the probative value against the danger of unfair prejudice. See R v Blick (2000) 111 A Crim R 326. 34 However, for the purposes of an appeal, an application of s 137 is to be regarded as analogous to the exercise of a discretion and, therefore, can be reviewed by an appellate court only in accordance with the principles stated in House v The King (1936) 55 CLR 499 at 504-505. See R v Blick at 333 [19], Vickers v Regina (2006) 160 A Crim R 195 at 210 [76]. 35 It was submitted on behalf of the respondent that Judge Goldring had not made any error within the principles stated in House v The King and therefore his Honour's ruling could not be successfully challenged. 36 As I have already indicated, Judge Goldring held that evidence "must be unambiguous, if it is to satisfy the tests in s 137" and applying this principle and his view that the evidence was not free from ambiguity, he held there was a danger of unfair prejudice to the respondent which outweighed any probative value the evidence had. 37 In my opinion, in directing himself that evidence "must be unambiguous, if it is to satisfy the tests in s 137" his Honour was "acting upon a wrong principle" within the statement of principles in House v The King. 38 It not infrequently happens that evidence sought to be relied on by the Crown in a criminal trial is open to more than one interpretation or is capable of giving rise to more than one inference. However, provided that the evidence is capable of bearing the interpretation or of giving rise to the interference contended for by the Crown, the fact that the defence can suggest some other interpretation or inference which would be consistent with the innocence of the accused does not, of itself, show that any probative value the evidence has is outweighed by the danger of unfair prejudice. 39 It is part of the function of the jury as the judges of the facts to determine what interpretation should be given to evidence they accept and to determine what inferences should be drawn from evidence they accept. It is frequently part of the function of the jury to determine which, if any, of a number of competing inferences should be drawn. 40 Some remarks made by McPherson J of the Queensland Court of Criminal Appeal in R v Berrill [1982] Qd R 508, which were quoted with approval by the New South Wales Court of Criminal Appeal in R v Kalajzich (1989) 39 A Crim R 415 at 430 were directed to evidence relied on by the Crown as corroboration but are of general application. McPherson J said in part:- "Whether it (the evidence in question) in fact bears the interpretation placed upon it by the prosecution is a matter of inference, and as such, a matter of fact for the jury to whose decision it should ordinarily be left…For the judge to withdraw it from the jury simply because some possible alternative inference is open involves a usurpation of the jury's function…"

Conclusion 41 In my opinion, the appeal should be allowed and the ruling made by his Honour Judge Goldring on 12 March 2007 that evidence of the two text messages is inadmissible should be set aside. 42 I do not, however, consider that this Court should make an order that evidence of the two text messages will be admissible at any trial of the respondent on the charges. There is no current trial in the District Court and it is conceivable that some change in circumstances might occur before any trial takes place. 43 ROTHMAN J: I have had the advantage of reading the reasons for judgment of James J. I agree with the orders proposed by his Honour and generally with the reasons given for them. 44 James J deals with the allegations of sexual assault which were said to have occurred on 6 January 2006. On the voir dire, Goldring DCJ had before him the witness statement of the victim which refers to the circumstances of the alleged assault during which it is said penile penetration occurred. Thereafter the witness statement alleges that the accused went inside to speak to a doctor while the victim was left in the room with her friend. It is alleged that during that time the victim told her friend that she had been forced to have sex with the accused. The witness statement immediately thereafter has the following paragraph: "[The accused] came back out and told us what the doctor said and we waited for him to finish his lunch and then we went into the lounge there and then made up a story about [the friend's] kids so that we could go. We had an argument, I can't remember the exact words but he said, 'I want to make sure no one uses me cunt' I told him to 'get fucked' and that's when we left. [The accused] walked us out and I said, 'You're an arsehole.' He said, 'Why' I said, 'because of what you said', and he said, 'Well you can understand for what you did to me while I was in gaol.' I had slept with another person while he was in gaol. We travelled back to Lithgow and I spoke with [the friend] about what had happened." 45 It is in the context of the foregoing that one must understand the text message said to have been received on 9 January 2006. It was in the context of an allegation of forced sexual intercourse and an allegation about an argument concerning whether the victim would "cheat" on the accused during the time that he was incarcerated. 46 In those circumstances the reference in the text message of 9 January 2006 to being sorry for what occurred on Friday may have a different connotation than a reference to forced sexual intercourse. Those circumstances may also disclose a different connotation to the text messages on 10 January 2006. 47 However, the inference and interpretation sought to be drawn by the Crown is an inference and interpretation that is open and plainly so. Further the text messages are probative both for the reasons given by the Crown and also to disclose the context and relationship between the accused and the victim. 48 While it is true, on one interpretation and inference, the apology relates to the argument which, in turn, refers to sexual activity, there is clearly an inference available that the text messages of 10 January 2006 admit to sexual intercourse having occurred on 6 January. As a consequence it is highly relevant to an issue of fact in the trial. 49 It is not unusual for there to be competing views (each of which may be open) as to the meaning of a statement alleged to be an admission of fact in issue at the trial. I agree with James J that so long as the evidence is capable of bearing the interpretation or giving rise to the inference contended for by the Crown, the fact that there may be other interpretations or inferences available consistent with the innocence of the accused does not, of itself, show that any probative value the evidence has is outweighed by the danger of unfair prejudice. 50 In those circumstances Goldring DCJ has erred. 51 Section 5F(3A) of the Criminal Appeal Act 1912 (NSW) grants the right of appeal to the Crown on a ruling on the admissibility of evidence only in circumstances where the ruling "eliminates or substantially weakens the prosecution's case". 52 In my view the term "substantially weakens" must be understood in the context that it is used as an alternative to "eliminates". 53 The word "substantially" has two quite distinct meanings. "The word 'substantial' is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision … [I]t can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in the relative sense or can indicate an absolute significance, quantity or size." (per Deane J in Tillmanns Butcheries v AMIEU (1979) 42 FLR 331 at 348). 54 As earlier stated the word "substantial" or "substantially" can generally have two distinct meanings: either "of substance" or "in substance". As such it has two quite distinct effects. The first of them is to use the words "substantial" or "substantially" to qualify "existence at all" and is used in contradistinction to the term "nominal" or "ephemeral" (see for example Tillmanns Butcheries Pty Ltd v AMIEU, supra; O'Brien Glass Industries Limited v Cool and Sons Pty Ltd t/a Wagga Windscreen Service (1983) 77 FLR 441. 55 The second or latter use of the term "substantial" or "substantially", meaning "in substance", is used to qualify "totality" and is used in the sense of "essential", "essentially", primary examples of which would be "substantial compliance" or "substantially all" (see Bonnard v London General Omnibus (1921) 38 RPC 1; Re: Bonny [1986] 2 Qd.R 80; Re: Migliorini; ex parte Silk Brothers (1974) 22 FLR 491; Marc A Hammond Pty Ltd v Papa Carmine Pty Ltd (1977) 28 FLR 160; Palser v Grinling [1948] A.C. 291; Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665; Henry Burford [1932] 2 Ch 122; A.E. Terry's Motors Ltd v Rinder [1948] SASR 167; Commissioner for Superannuation v Scott (1987) 13 FCR 404). 56 In my view the words "substantially weakens" used in the context of an alternative to "eliminates" must mean that the effect of the evidence must be to weaken the Crown case more than ephemerally or more than nominally. The weakening effect of the exclusion of the evidence must be significant. This will occur when evidence of cogency or force is withheld: R v Shamouil [2006] NSWCCA 112, per Spigelman CJ at [37]. 57 The current circumstances are such that the evidence in question is probative, has cogency or force if accepted in the manner submitted by the Crown and therefore an appeal lies. 58 Error having occurred in circumstances where there is an appeal from such a ruling, the orders proposed by James J are necessary and I agree with those orders. 59 HARRISON J: I agree with James J.

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