Supreme Court of NSW|1998-08-10|Before: Mason P, Wood CJ, Sperling J

For the reasons identified by Ireland J in AH (1997) 42 NSWLR 702, with whom Hunt CJ at CL and Levine J, agreed, it is important that the use to which evidence of this kind is to be put is clearly identified, and explained to the jury, particularly now having regard to the Evidence Act 1995. In that case, Ireland J observed, at 708:

**"**Prior to the Evidence Act 1995, and in R v Beserick (1993) 30 NSWLR 510 at 515, this Court held on the basis of respectable authority, that evidence of conduct with a sexual connotation between the complainant and the accused other than that which is the subject of an offence or offences charged is relevant in two different ways:

(a) the relationship revealed may place the evidence of the events which give rise to a particular charge into their true context as part of the essential background against which the evidence of the complainant and of the accused necessarily fall to be evaluated: B v The Queen [1992] HCA 68; (1992) 175 CLR 599 at 610 (see also 602-603) and

(b) the guilty passion of the accused revealed - or, in less inflammatory terms, the sexual desire or feeling of the accused for the complainant - is directly relevant to proving that the offence charged was committed: R v Ball (1911) AC 47 at 71; see also Pfennig v The Queen [1995] HCA 7; (1975) 182 CLR 461 at 526.

The evidence - once admissible for either or both of those purposes - will also necessarily make the complainant's evidence more credible in relation to the events upon which the charges were based.

Where the Crown introduces the evidence for the former purpose, it is not tendency evidence, and the requirements of s 97 and s 101 are irrelevant R v Harvey (CCA, 11 December 1996, unreported) at 5-6. Once admitted for that purpose, however, the evidence cannot also be used as tendency evidence in the sense that, because the accused had the guilty passion, he did the act in question unless it does comply with those requirements (Evidence Act, s 95), and the judge should direct the jury that they may not use it in that way unless it does comply."

In a case such as the present, where the "other evidence" (to use the trial Judge's expression) concerns sexual conduct involving the complainant, the relevant starting point is S 409B(3) Crimes Act. That section makes inadmissible in "prescribed sexual offence proceedings," as defined in S4 of the Crimes Act (which would include the present proceedings), any evidence which discloses or implies that the complainant has or may have had sexual experience, or has or may have taken part in any sexual activity except in certain defined situations, and then only where its `probative value outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission".

So far as the transcript discloses, consideration was not given to this section, although as this Court held in Beserick it would have been appropriate to do so, by assessing the probative value of the evidence, and by examining whether one of other of the exceptions (most relevantly those mentioned in S409B(3) (a) or (b)) was applicable. In most instances, as Beserick makes clear, the evidence will satisfy the exception in S409 B(3)(b) as falling within the term "relationship" used in that provision, ie so long as the relationship was "existing or recent" at the time of the prescribed offence.

There were further thresholds, arising under the Evidence Act 1995, to be passed before this class of evidence could have been admitted.

First, the evidence was not admissible to prove that the accused had a tendency to act in a particular way unless the Court thought that it would have "significant probative value" (S97(1)) and then only if its probative value "substantially outweighed" any prejudicial effect it may have had on the accused (S101(2)).

The expression "significant probative value" has been interpreted to mean that its degree of relevance to the events giving rise to the offence charged is important or of consequence: Lockyer (1996) 89 A Crim R 457 at 459; Lock (1997) 91 A Crim R 356; and AH per Ireland J, at 709. Evidence of guilty passion can qualify as such (Harriman [1989] HCA 50; (1989) 167 CLR 590 at 597-599; S [1989] HCA 66; (1989) 168 CLR 266 at 275; B [1992] HCA 68; (1992) 175 CLR 599 at 618; and Gipp.

Next, its admission, whether as tendency evidence or as relationship evidence, must have been refused by the court if its probative value was judged to be "outweighed by the danger of unfair prejudice" to the accused (S137).

Finally, general discretions were exercisable, first under S 135, to exclude the evidence if its probative value was "substantially outweighed by the danger that the evidence might be unfairly prejudicial" to the accused; and secondly, under S 136, to limit the use to which it might have been put if there was a "danger that a particular use (of it) might be unfairly prejudicial to" the accused. These discretions were also equally applicable whether the evidence was pressed as tendency evidence, or as relationship evidence, or otherwise.

The task of applying these provisions of the Crimes Act and of the Evidence Act to any given case is not made any easier by the different terms in which each is expressed. However, common to each is the need to assess the probative value of the evidence. Additionally, its potential prejudice to the accused needs to be considered in relation to the Evidence Act, and in relation to any residual discretion that may exist at common law.

It was with these matters that the present ground was primarily concerned. So far as the transcript reveals, they were not matters to which his Honour gave any consideration.

The uncharged conduct sought to be relied upon comprised three events, two in 1995 and another said to have occurred not earlier than 1990. The jury were informed that, notwithstanding the acquittal of the accused upon count 10, they were also entitled to take evidence of the conduct the subject of that charge into account "as part of the overall circumstances of which the first 9 counts are representative charges". The best date that the complainant could give to this event was that it occurred some time after April 1987. If Bob was correct in his evidence as to the time he lived in the caravan park, then it could only have occurred between 1991 and 1994.

No specific direction was given in relation to whether or not the jury could similarly take into account evidence of the conduct charged in counts 8 and 9, occurring in May 1992, in the event of them reaching a not guilty verdict through failure of the Crown to prove absence of consent. It is likely that this was the basis of the acquittal, and that by parity of reasoning, having been given the direction mentioned in relation to count 10, that they did add the evidence concerning these counts to the evidence in relation to the uncharged conduct.

No allowance was made for the lapse of at least five years between the period charged for the conduct concerning counts 1 to 7, and that charged for counts 8 and 9; or for the lapse of at least eight years between the period charged for counts 1 to 7, and that for the first two of the uncharged episodes. Nor was any consideration given as to the potential time difference between the conduct charged in those counts and that which was undetermined for Count 10, or that which was applicable to the remaining uncharged episode, but which would appear to have been not less than four years and three years respectively.

While there is authority for taking into account, as evidence of guilty passion, conduct subsequent to that charged: Beserick at 510, and Fordham (Court of Criminal Appeal, NSW 2 December 1997 unreported), clearly the circumstances in which it occurs, and the time at which it occurs, can be very relevant to weight.

As was observed by Hunt CJ at CL, in Beserick at 521 to 522:

"Trial judges must ... give anxious consideration in the exercise of their discretion in every child sexual abuse case to the weight of each piece of evidence tendered to establish a guilty passion on the part of the accused. ... remoteness of the other activity from the time of the offence charged goes to the weight of that evidence. The more remote the other sexual activity is, the less will be its weight; and in general (as a matter of commonsense), the weight to be afforded to subsequent sexual activity will be less than that to be afforded to previous sexual activity."

"If the conduct in question is not remote from the time of the alleged offence, the Crown should usually have little difficulty in establishing that the evidence has importance in establishing the guilt of the accused, and thus that it is of significant probative value."

Otherwise, we would add where the additional conduct is remote from the time of the alleged offence.

The remoteness in time of the conduct in question, and of any change in the legal status of the complainant as a participant in sexual activity with the appellant, were accordingly important in any consideration of the probative value of the evidence.

Against this was to be weighed any prejudicial effect of the evidence so far as tendency evidence was concerned. The prejudice potentially lay in the circumstance that the ordinary person may well think that someone with an established tendency, desire or passion to behave in a particular way, whenever a suitable opportunity arises, will yield to that personality characteristic or emotion and so behave in the circumstance of the particular case; or, in a case where an offence is known to have occurred, but the identity of the perpetrator is in issue, will ignore the possibility that some person other than the accused, but of like propensity, may have committed that offence: Pfennig at 488.

By 1990, the complainant was seventeen years of age, by 1992 he was nineteen, and by 1995 he was twenty-two. An obvious question arises as to whether the existence of sexual contact between the two men, in 1992 or 1995, when they were adults and capable of consensual activity had any significance in demonstrating a sexual attraction on the part of the appellant for the complainant in 1986, when he had been a thirteen year old boy. Particularly is this the case where it seems likely that the jury regarded the later conduct as consensual, or at least had a reasonable doubt about that.

We were of the view, having regard to the remoteness in time, and the age of the complainant when the uncharged events occurred, that evidence of conduct in these later years lacked significant probative value. It was, moreover, potentially extremely prejudicial, particularly since it laid the way for the tender of the Polaroid photographs, which may well have been regarded by the jury as corroborative of the complainant so far as he said that he had been bound and restrained when the other charged events had occurred.

Upon that basis, it seems to us that evidence concerning these uncharged events should not have been received as evidence of guilty passion, or for that matter as background relationship evidence. In the latter regard, we are of the view that events in 1992 or 1995 between the appellant and the complainant, when they were adults, were incapable of placing acts alleged to have occurred between them many years earlier, when one was still a minor, into any relevant context, or to assist the jury with an understanding of their relationship.

We were also of the view that it was erroneous for his Honour to have left to the jury the evidence in relation to Count 10, once the jury had been directed to acquit the appellant of that count. Not only was the accused entitled to assume once that part of the case had been taken away (as occurred at the close of the Crown case), that he need not deal with it any further in his case; but additionally, the conduct alleged was simply unfixed as to time, so that it could not have been said with any certainty to have had a significant probative value, or to have contributed much to the relationship or context in which the other events alleged occurred.

Similar principles apply in relation to the evidence concerning Counts 8 and 9. No direction was given as to the manner in which the jury should approach this evidence, in the event of them deciding to acquit the accused on those counts. Nor was the evidence shown to have had much in the way of probative value in that the conduct alleged related to a period not sooner than five years later than that charged for the first 7 counts, and at a time when the complainant was an adult.

Additionally, although a general caution was given in relation to the evidence, it fell short of the clear explanation and warning which this Court considered appropriate in Beserick. Hunt CJ at CL there said at 516, in the event of the discretion to exclude the evidence being exercised unfavourably to the accused, then

"... an explanation should invariably be given to the jury - as soon as the first of that evidence is given and, if necessary, again in the summing-up - is to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged."

Accordingly, we consider that this ground of appeal has been made out. However, before parting from it we wish to make some reference to the decision in Gipp.

In Gipp, where the High Court split three to two, divergent views were expressed as to the circumstances in which relationship evidence might be received, and as to the use to which it might be put. As the three separate majority judgments by Gaudron J, Kirby J and Callinan J have little common ground, it is difficult, if not impossible, to extract any clear ratio from the case.

Gaudron J, expressed the view (at 19) that "general evidence of sexual abuse on occasions other than those charged does not have that special probative value which renders it admissible as similar fact or propensity evidence". In the absence of a feature of the kind present in Ball, that made it directly relevant to the question of guilt, then it was admissible only to meet some subsidiary issue arising in the trial to which it was relevant, arising from the way in which the defence case is conducted, for example to explain lack of surprise or failure to complain.

Kirby J, who preferred to categorise relationship evidence as tendency evidence, accepted that it could be admitted upon a limited basis (ie for a purpose other than proving a particular tendency), if its probative value outweighed its prejudicial effect (at 54). In quoting with approval a statement by the Victorian Court of Appeal in Vonarx (court of Appeal Vic 15 November 1995, unreported at 12-13) that such evidence may be used to enable "the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting". His Honour appears to have accepted the correctness of the statements of Brennan and Deane JJ in B, and of this Court in Beserick, Wickham and AH.

Callinan J, at 64, rejected the notion that there was a "special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defence that may make it admissible)". His Honour expressly disagreed with the observations of Deane J in B, but made no reference to the parallel observations of Brennan J in that case, or to the classic statements by the High Court as to relationship evidence in Wilson [1970] HCA 17; (1970) 123 CLR 334, a decision which has stood unquestioned, and applied in innumerable trials since it was handed down. He may, however, be assumed to disagree at least with the observations of Brennan J, in B, in the light of his disagreement with Deane J in that case. His Honour concluded that if evidence of this kind was to be received, then "it must owe its admissibility to some quite specific, other purpose, including, for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity, or motive". (at 64)

In their joint minority judgment, McHugh and Hayne JJ, at 35-36, accepted the correctness of the admission of the evidence at first instance in the case under appeal, not as propensity (tendency) evidence but `for the limited purpose of making the circumstances of the specific offences more intelligible", ie so that the jury "could understand the context of the incidents that were the subject of the charges. Although their judgment makes no reference to the observations of Brennan and Deane JJ in B, it is entirely consistent with those observations, and with the approach which has been hitherto regarded as settled by this Court.

In the result, three members of the Court (albeit that two members were in the minority) accepted the admissibility of relationship evidence to set the offences alleged in their context, and to enable the jury to properly evaluate the evidence concerning them. In those circumstances, we are of the view that until the High Court decides otherwise, the law as laid down in AH, Beserick and Wickham, and as declared by Brennan and Deane JJ in B, should continue to be applied in this State.

Ground 9 - the convictions were unsafe and unsatisfactory

A number of matters were identified by Counsel for the appellant as supporting the conclusion that the verdicts in relation to Counts 1 to 7 were "unsafe and unsatisfactory". For the appellant to succeed on this ground (which was argued by reference to the question whether the verdict was unreasonable or not supportable on the evidence, and not by reference to the wider considerations discussed in Gipp) this Court must reach the view that the jury ought to have entertained a reasonable doubt as to his guilt: M (1994) 181 CLR 487 and Jones (1997) 72 ALJR 78.

Although the test has been expressed in terms which recognise that if this Court has, upon its assessment of the evidence, a reasonable doubt about the guilt of the appellant, then so should it attribute that doubt to the jury, it does not follow that the advantage which the jury possesses in seeing and hearing the witnesses is to be ignored. This was a case where the appellant did give evidence and that similarly needs to be recognised.

The matters relied upon by the appellant in support of this ground concern the following:

(a) the evidence as to the date on which WS began to work at the appellant's car yard and on which he was married - matters relevant to the complainant's evidence that at the time of the first offence in 1986, he was threatened that if he complained WS would lose his job. The evidence concerning the date on which WS began that job was equivocal, in the absence of employment records being tendered. There was in fact evidence from WS that he had worked at the dealership for a year or so before being married. It was his own recollection that he commenced in 1986. By the time the complainant gave evidence, WS was his brother in law, and to so describe him did not necessarily carry the suggestion that he already had that status in 1986.

(b) the evidence that there were no single beds in the master bedroom until late 1989, the bed previously there having been a waterbed with no base which sat flat on the floor - a matter relevant to the complainant's evidence that in the period March 1986 to April 1987 he was assaulted upon a single bed in that room, and tied to the legs of that bed;

[c] the evidence that the appellant had a pronounced appendectomy scar - yet the complainant noticed no such scar, whereas he might have been expected to have done so if he had been forced to engage in the conduct alleged;

(d) the evidence that other persons within the appellant's family had access to the house over the weekends, and that a number of people from the dealership had keys to the premises - circumstances said to render conduct of the kind alleged at these locations unlikely;

(e) the evidence that a number of persons had the use of the motor vehicles the appellant drove - a circumstance said to render it unlikely that the paraphernalia allegedly used in the assaults would have been carried around in those vehicles;

(f) the evidence that his family had not seen that paraphernalia around the house or any Polaroid camera;

(g) the length of time between the events and the first complaint; and

(h) the somewhat chaotic history of the complainant which had included the use by him of cannabis and heroin.

These were all matters placed before the jury. None except the second was of a kind which, if believed, closed out the conduct alleged. The production of a manufacturer's label did not of itself prove anything, since it could have come from any bed. It would seem that, by its verdict, the jury chose to disbelieve the appellant, and the other witnesses, as to the date of the change over of the beds.

The first matter would have been critical had the commencement date of WS's employment been properly established as occurring after 1986, but that was not done. All of the other matters were capable of being the fact without necessarily throwing doubt of any serious kind upon the complainant's account.

In these circumstances, and having regard to the advantage which the jury had of seeing and hearing the witnesses themselves, we do not think that this case meets the test in Jones. It is for these reasons that the Court made the order which it did on 29 April last, for a new trial rather than an acquittal.

A number of subsidiary grounds were contained in the Notice of Appeal but were not argued, in view of the orders which the Court considered appropriate. They will not be addressed here as they are of lesser moment and do not impact upon the last ground mentioned.

Regina v Fraser Matter No Cca 60441/97 [1998] NSWSC 286 (10 August 1998)

"Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. When it does so, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie. At one time it was thought that only a lie told out of court could amount to an implied admission, (Tumahole Vereng v The King (1949) AC 253, at p 270_; Reg v Chapman_ (1973) QB at pp 783-784_)_ but the distinction is not logically supportable and is no longer drawn. (Eade v The King [1924] HCA 9; (1924) 34 CLR 154, at p 158_; R v Tripodi [1961] VicRp 30; (1961)_ VR 186, at pp 193-194_; Reg v Perera_ [1982] VicRp 91; (1982 VR 901, at pp 904-905_; Reg v Heyde_ (1990) 20 NSWLR 234, at pp 236, 241_; Director of Public Prosecutions v Boardman_ (1975) AC 421, at pp 4288-429_; Reg v Lucas (Ruth)M(1981) QB,_ at pp 724-725_;_ Heydon_, `Can Lies Corroborate?'_ Law Quarterly Review, vol 89 (1973) 552_)._ When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to "convert what would otherwise have been insufficient into sufficient evidence of guilt" ( ; , at p. 555, per Griffith CJ_)_ or as corroborative evidence.

Regina v Fraser Matter No Cca 60441/97 [1998] NSWSC 286

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Regina v Fraser Matter No Cca 60441/97 [1998] NSWSC 286 (10 August 1998)