REGINA v AB

COUNSEL : Mr J S Stratton for the Appellant Ms E A Wilkins for the Crown SOLICITORS : D J Humphreys for the Appellant S E O'Connor for the Crown CATCHWORDS : Appeal against conviction - tendency evidence - requirement to give notice - Reg 6, Evidence Regulations 1995 - nature of requirement - whether reference to extrinsic documents permissible LEGISLATION CITED : Evidence Act 1995 Evidence Regulations 1995 AN (2000) 117 A Crim R at 176 CASES CITED: Hoch v The Queen (1988) 165 CLR 292 Pearce v The Queen {1998} HCA 57; (1998) 194 CLR 610 DECISION : Leave to appeal against sentence is granted and both the conviction appeal and sentence appeal are dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60313/00 SPIGELMAN CJ SULLY J ADAMS J THURSDAY, 15 NOVEMBER 2001 AB v REGINA (NSW)

1 SPIGELMAN CJ: I agree. 2 SULLY J: I too agree. 3 SPIGELMAN CJ: The orders of the Court are leave to appeal against sentence is granted and both the conviction appeal and sentence appeal are dismissed. 4 ADAMS J: The appellant was convicted on 11 April 2000 of six charges of homosexual intercourse with a child between the ages of 10 and 18 years. On 19 May 2000 the learned trial judge. Judge Gibson QC DCJ sentenced the appellant. Issues are raised concerning the forms of these sentences which I will deal with later in this judgment. 5 Before coming to the grounds of appeal, it is desirable briefly to set out the circumstances of the case. The complainant was born on 20 March 1975 and was distantly related to the appellant who came to live with his family in 1985. The appellant and the complainant slept in the complainant's bedroom for some two years and later the appellant frequently met with the complainant in various places. There were two beds in the bedroom. The Crown case was that from the time he was 10 years old, the complainant was the subject of anal intercourse by the appellant and that on occasions their roles were reversed. 6 Specific offences were, as they had to be, specified in the six counts on the indictment. However, the Crown sought to prove that those six counts were but examples of continuing acts of inappropriate sexual behaviour involving anal intercourse which had occurred over the period from when the complainant was 10 years old to when he was 16 years of age. The evidence of the other offences was admitted under the well-known rules relating to what has come to be called relationship evidence which has been the subject of many decisions in this Court. For convenience I refer to the discussion in AN (2000) 117 A Crim R at 176. I do not propose further to dilate upon this aspect of the case except to say that that evidence was clearly admissible in the present case to provide a context for the complainant's evidence concerning the charges precisely to be considered by the jury upon the indictment. 7 In addition, the Crown sought to prove admissions made to the complainant's family by the appellant. Those admissions were in general terms and demonstrated in the appellant a consciousness that he had an inappropriate sexual relationship with the complainant. 8 In order to appreciate both the complainant's evidence and weigh the significance of the admissions, it was, in my opinion, relevant for the Crown to establish the history of the sexual relationship between the complainant and the appellant. In this respect, this case raises no new or different points and may be conventionally disposed of. 9 However, the Crown also relied upon proof of the other offences to establish what has been called and I will refer for convenience to it as a guilty passion in the appellant for the complainant. I have already indicated that such a guilty passion appears to have been proved, amongst other things, by the evidence of the admissions made by the appellant. The contextual relationship also being otherwise admissible, the jury was entitled to look at that material as well, if they believed it to be established, as evidence of guilty passion. 10 The charges in the indictment, of course, had to be established. It seems to me that the jury were entitled to reason that from the guilty passion shown by the other offences and by the admissions made by the appellant, it was all the more likely that the charges in the indictment were proved beyond reasonable doubt. The other offences, if they are to be used in this way as establishing a guilty passion, to my mind plainly fall within the definition of tendency evidence as that term is used in the Evidence Act 1995. Accordingly, the provisions of s 97 come into play. Section 97 requires that reasonable notice in writing be given in the circumstances established here by the Crown to the accused of its intention to adduce the evidence. The form in which that notice is to be given is prescribed by Regulation 6 of the Evidence Regulations 1995 as follows - "(1) This clause is made for the purpose of section 99 of the Act. (2) A notice is given under section 97(1) of the Act (relating to the tendency rule) must state: (a) the substance of the evidence of the kind referred to in that subsection that the party giving notice intends to adduce; and (b) if that evidence consists of, or includes, evidence of the conduct of a person, particulars of: (i) the date, time, place and circumstances at or in which the conduct occurred; and (ii) the names and addresses of each person who saw, heard or otherwise perceived the conduct, so far as they are known to the notifying party. (3) A notice given under section 98(1) of the Act (relating to the coincidence rule) must state: (a) the substance of the evidence of the occurrence of two or more related events that the party giving the notice intends to adduce; and (b) particulars of: (i) the date, time, place and circumstances at or in which each of those events occurred; and (ii) the name and address of each person who saw, heard or otherwise perceived each of those events, so far as they are known to the notifying party." 11 The notice given here took the following form - Notice is hereby given that the Prosecution presently intends to adduce evidence of "tendency" pursuant to the tendency rule in sub-section 97(1) of the Evidence Act 1995, ie. evidence of the conduct of a person, or tendency that a person has or had to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way or to have a particular state of mind. 1. The person whose "tendency" is the subject of the evidence sought to be adduced is AB. 2. The substance of the "tendency" evidence which the Prosecution intends to adduce is contained within the statements of AB dated 21st, 24th & 27th March, 1998 previously served on the Accused. 3. So far as it known to the Prosecution, particulars of the date, time, place and circumstances at or in which the conduct referred to in paragraph 2 above occurred are contained within the documents referred to in paragraph 2 above. 4. So far as is known to the Prosecution, the names of each person or saw, heard or otherwise perceived the conduct referred to in paragraph 2 above are contained within the documents referred to in paragraph 2 above." 12 Ground 2 of the notice of appeal is that - "His Honour erred in admitting evidence of uncharged sexual acts between the appellant and the complainant as propensity [tendency] evidence." It is not, as I understand it, argued that if appropriate notice had been given, the evidence was inadmissible except in one respect to which I will come in a moment. It is primarily submitted that the notice failed to comply with the requirements of the regulations with the consequence that the evidence was not admissible. If the evidence was not admissible, then the trial, it was argued, miscarried. 13 I do not think there can be any doubt that, if the evidence of the other offences was wrongly admitted, there was a miscarriage. However, I am satisfied that the notice did comply in substance with the regulation. The notice given in this case, as is shown above, referred to a number of statements that were specifically identified and which had previously been served in accordance with the usual and proper practice. 14 It is not submitted to us that had those statements been incorporated in the notice itself, there would have been insufficient compliance with the requirements of regulation 6. As I understand the appellant's argument, it is that regulation 6 requires that material to be contained in the notice and it is not sufficient compliance if reference is made to another document of whatever form, however provided, and even if it were attached to the notice itself. I am unable to accept this argument. It would represent a triumph of form over substance and a triumph which could not fail but to bring the administration of justice into disrepute. 15 I consider that it is sufficiently compliant with the regulation if the notice states, either in its own body or by reference to documents readily identifiable, the nature and substance of the evidence sought to be tendered. Whether or not that narrative does give the substance of the evidence is a second matter to be considered and, of course, a notice which failed to do so, whether by narrative in the body of the document or a document to which it refers, would not comply with the regulation and the evidence, in my view, would then not be given unless the corrective provisions of the Evidence Act were enlivened. The statements are not before us but it is reasonable to infer that the evidence given in the trial as to those other matters reflected what was in those statements. If so, it seems to me that they were sufficiently specific to comply with the regulation. I would therefore reject the appellant's argument in so far as it depends upon the form of the notice. 16 It was submitted, in addition, that s 97 would have excluded the application of the tendency evidence upon the ground that it was reasonably possible that the complainant had concocted the evidence of the other offences and therefore, following such authorities as Hoch v The Queen (1988) 165 CLR 292, the evidence should have been excluded. 17 The crucial question for the admission of tendency evidence is provided by s 101 of the Evidence Act 1995, which focuses attention on the probative value of the evidence and the issue whether this substantially outweighs any prejudicial effect it might have on the defendant. In this sense, it is, if I may say so, right for counsel for the appellant to point to the need to assess the probative value of the evidence of the surrounding circumstances. In my view, the probative value of that evidence was high in the circumstances of this case, upon the assumption, of course, that it was true, but that must be necessarily the assumption with which s 101 is concerned. The question whether the evidence was true or untrue essentially depended upon the credibility of the complainant and the reliability and truthfulness of the evidence of the complainant's relations concerning the appellant's alleged admissions. I am satisfied that the probative value of that evidence did substantially outweigh any prejudicial effect it may have had on the appellant. It was not, in fact, more prejudicial, it seems to me, in any forensically significant sense, than the evidence of the acts comprising the charges alleged in the indictment, but it was essential to have that evidence in order to assess the complainant's testimony concerning the particular charges, verdicts on which were sought by the Crown. 18 The situation considered in cases such as Hoch (supra) has no real bearing on the situation here where there is a sole complainant and the other illegal acts are tendered for the purpose of providing a proper and fair contextual basis for assessing the Crown case, nor is it material to the issue whether or not there was indeed an illicit and improper passion or feelings in the appellant towards the complainant. Accordingly, I am satisfied that this evidence should not be excluded by reference to the test imposed by s 101 of the Evidence Act 1995. 19 The next complaint made by the appellant relates to his Honour's directions about the use that could be made of the tendency evidence. His Honour said this at page 14 - "This evidence was admitted for two purposes. It was admitted firstly to show the relationship between the parties and context in which these charges are said to have occurred. Experience in these Courts has shown that these matters do not normally occur in a vacuum. It was admitted so that you understand that the complainant is not asserting that the only occasion these incidents occurred are those matters set out in the indictment, but that between the occasions set out there were other incidents, although he can no longer indicate them with any particularity because of the length of time that has elapsed. ... secondly, the Crown suggests that the action of the accused showed that he developed a guilty passion towards the young boy, the complainant...that is that he was sexually attracted to the accused. If you were satisfied beyond reasonable doubt by the evidence that you accept, if any, that this was the situation, then you can use that in determining whether, on the occasions alleged in the indictment, he gave way to that guilty passion and indulged in the conduct which is alleged against him. If you are not so satisfied by the evidence beyond reasonable doubt that that guilty passion existed, then that evidence vanishes from the scene." 20 I am unable to see any error in the direction of his Honour in relation to the other offences. I should mention, however, that it was perhaps unfortunate that his Honour said that "experience in these Courts has shown that these matters do not normally occur in a vacuum". It was unnecessary to refer to the experience of the Courts, especially in a way that suggested that the existence of the allegation about these other offences somehow bolstered the complainant's credibility. However, I am sure that in the context of the directions as a whole, this would not have deflected the jury from understanding the true and proper import of the evidence which was tendered. It seems to me that his Honour's directions as a whole set out appropriately the purpose and limitations of the evidence in question in accordance with authority. 21 For the purpose of considering ground 4 and ground 5 of the notice of appeal, it is necessary to set out the sentences which were imposed. The counts in the indictment started with the first alleged act of anal intercourse that occurred when the complainant was 11 years old. Count 2 alleged an offence when the complainant was 12 or 13 years of age. Count 3 related to the same period. Count 4 related to somewhat later when the complainant was 13 years. Count 5 related to perhaps something of about two years later when the complainant was 15 years old and count 6 related to the same period. The sentences were in respect of count 1 a fixed term of 5 years, count 2 a fixed term of 3 years, count 3, a fixed term of 2 years, counts 4 and 5 the appellant was sentenced to a fixed term of 4 years, but on count 6 the appellant was sentenced to 8 years imprisonment with a non-parole period of 6 years. All sentences were concurrent. 22 When sentencing, his Honour said - "I propose that the sentence that I impose on the sixth count will encompass the totality of the [appellant's] criminality in respect of all conduct. It would be possible for me to in fact add sentences upon sentences, but I do not think that gets anywhere in relation to the matter which can be dealt with in this way." 23 It was submitted that the sentencing of the appellant in this case did not comply with the requirements as specified by the High Court of Australia in Pearce v The Queen {1998} HCA 57; (1998) 194 CLR 610 in which it was said by McHugh, Hayne and Callinan JJ - "[45] To an offender, the only relevant question may be how long and that may suggest that a sentencing judge or appellant Court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well, of course, as questions of totality. [46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is then all the more important the proper principle be applied throughout the process. [47] Questions of cumulation and concurrence may well be affected by particular statutory rulings. If in fixing the appropriate sentence in each offence proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation." 24 I am not entirely sure what his Honour meant to convey in the passage to which I have referred. However, I am satisfied that the sentence which his Honour imposed, despite the submission made under ground 5 to the notice of appeal that the sentence was manifestly excessive, was appropriate. 25 To my mind, the first offence would have been the appropriate one against which to impose a sentence of the order of eight years with a non-parole period of six years, principally having regard to the age of the complainant at that time. However, I consider that the sentence in respect of the sixth count was also justifiable. It reflected the continuing corruption of a young person under the influence of the appellant in circumstances where he abused his responsibility as an adult towards a child and abused the trust placed in him by both that child that wrong behaviour would not occur towards him and the parents who permitted him firstly, to share the child's bedroom and secondly, to share their house and their company. In my opinion, the offences committed by the appellant were very serious indeed. I consider that there was a proper basis both for the sentence which was imposed by his Honour and also for imposing it in relation to the sixth count as distinct from any of the others, although, as I said, I would have imposed such a sentence in relation to the first principally because of the then age of the complainant. 26 Even if his Honour departed from the principles which I have cited from Pearce, and I do not accept that his Honour has, having regard to the need to consider totality in the circumstances of this case reflected by the concurrency of the other sentences, this Court should not, as I see the matter, conclude that the sentence was, having regard to the circumstances, manifestly excessive as a matter of substance. 27 Accordingly, I would reject the appeal against conviction. In relation to the application for leave to appeal on sentence, I would grant the application but reject the appeal. I propose that the appeals be dismissed.

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