Regina v GLC [2000] NSWCCA 90 | Case summary

1 THE COURT: GLC seeks leave to appeal, pursuant to s5F of the Criminal Appeal Act 1912, as amended, against an interlocutory judgment of his Honour Judge Garling delivered at the Nowra District Court on 18 June 1999, refusing an application for separate trials. 2 The applicant was charged upon an indictment containing three counts. The first two counts charged that between 1 January 1988 and 31 December 1988 at St George's Basin, in this State, he did have sexual intercourse with TH a person then between the age of 10 years and 16 years. The third count charged that between 10 August 1992 and 30 April 1993 at Old Erowal Bay, in this State, he did assault CVG and, at the time of such assault, did commit an act of indecency on CVG, a person under the age of 16 years, namely nine years. 3 The trial was listed for hearing at the Nowra District Court commencing on 31 May 1999. Some three weeks prior to the trial, the prosecution gave notice to the solicitors for the applicant to the effect that at the trial the Crown would rely upon the provisions of ss97 and 98 of the Evidence Act 1995, to adduce evidence of alleged sexual misconduct by the applicant towards CVG in the case against the applicant under counts 1 and 2, and the evidence of alleged sexual misconduct by the applicant against TH in the case against the applicant under count 3. In other words, the prosecution would seek to lead evidence of both complainants in relation to all counts in the indictment. 4 On 26 May 1999 the solicitors for the applicant filed a notice of motion in the District Court at Nowra seeking, firstly, an order that the trial date of 31 May 1999 be vacated and the trial be relisted at the next sittings of the Nowra District Court; secondly, that "The proposed indictment should not be heard in its current form (as one trial); and thirdly "The proposed indictment should be divided to form a separate indictment for the charge relating to CG and another separate indictment for the two charges relating to TH". Finally, an order was sought that "A Trial should be heard (sic) for each Indictment". This may be taken, for present purposes, to be simply an application for separate trials. 5 When the matter came before Judge Garling at the Nowra District Court on 31 May 1999, the applicant was present and represented by Counsel. No plea was taken to the indictment. Counsel for the applicant informed the Court that by agreement the notice of motion should be heard and "there may be a need for a voir dire". The notice of motion was then stood over to the following day. 6 Upon the hearing of the notice of motion, the Crown prosecutor tendered the Crown briefs in relation to each complainant, which briefs contained the relevant statements of evidence of the prospective witnesses, together with a statement of facts prepared by the police officer in charge of the case. The matters which were ventilated at the outset of the hearing of the notice of motion included the question whether the proposed reliance by the Crown upon the evidence of both complainants on all counts against the applicant would be so unfair to the applicant that its probative value would thereby be substantially outweighed by the prejudice. Reference may be made here to s101(2) of the Evidence Act. Another matter which was ventilated was whether there was any potential evidence of possible concoction by the complainants as explained by the High Court in Hoch v The Queen. (1988) 165 CLR 292. 7 Early in the proceedings, the Crown Prosecutor informed his Honour, as follows: I am in a position to call some hearsay evidence that both of the complainants have been contacted and spoken to by telephone by an officer of the office of the Solicitor for Public Prosecutions and each of the complainants says that she had and has no knowledge of the other complainant either personally or the circumstances of what is alleged." 8 This remark drew the following response from counsel for the applicant: "I'm not content to accept a mere submission from the bar table about the possibility of concoction based upon some telephone call with the alleged victims, there will be need for a voir dire for the exploration of that if your Honour is against me in relation to the balance of the application." 9 His Honour then heard argument from the Crown Prosecutor and counsel for the applicant in relation to the question whether the evidence proposed to be adduced by the Crown under s97 (the Tendency Rule), and s98 (the Coincidence Rule), would or would not survive the threshold prejudice test contained in s101(2), to which reference has already been made. 10 Reference was also made to the leading cases in the High Court and this Court in relation to the common law principles applicable to tendency and similar fact evidence. The matter was stood over to 2 June 1999, part heard, on which date the Crown called the complainant TH, whose evidence was said to be taken on the voir dire. The evidence in-chief and the cross-examination were solely directed to whether there was any family or other connection between the witness and CVG. The witness denied knowing the other complainant. There was evidence however that the witness' father had some acquaintance with CVG's step-father. It also emerged that the witness knew CVG's step-father's niece from her school days. 11 The other complainant resides interstate and was not available to be called in this proceeding. However, the Crown prosecutor submitted that to the extent that there was evidence of some common family acquaintanceship it could not possibly provide any basis for a suspicion of collaboration or concoction involving the complainants. Counsel for the applicant did not challenge that submission on the basis of the evidence thus adduced. However he contended that it was not possible for the judge to make a final decision on the matter until evidence had been led on the voir dire from CVG. 12 Counsel for the applicant submitted that the appropriate course to follow was for his Honour to decide the ss 97 and 98 questions and if they were resolved against the applicant, then the question of potential concoction could be pursued further at a later date. His Honour then reserved his judgment on the notice of motion and stood the trial over to the next sittings with a priority listing. 13 Judge Garling delivered the interlocutory judgment which is the subject of the present application on 18 June 1999. At an early stage in the judgment, his Honour said: "I am proceeding on the basis at this stage that there is no evidence that the two girls knew each other or in fact even now know each other nor that there was any opportunity for concoction of their stories, although that may be a matter which will have to be disposed of at a later time. But for the purpose of this motion, I have proceeded on that basis." 14 His Honour concluded: "From what I have seen of the proposed evidence in this case, it leads me to conclude that what is alleged is that the accused indecently dealt with two young girls of a similar , though not an exact age, in a similar, and not an exact manner, that there is considerable probative value in the Crown leading that evidence, that by allowing them to lead that evidence, it would be prejudicial to the accused and therefore what I have to consider, as the High Court has set out in Pfennig is whether it falls into that special class of circumstantial evidence which does have a prejudicial capacity of a high order. When I apply that test I have concluded, on what is before me, that it is evidence that I would have admitted and therefore I am not prepared to make the orders, order 2, or 3 as set in the notice of motion." 15 In this Court Mr Buddin SC, the learned Crown Advocate, appeared for the respondent Crown. Mr Buddin (rightly in our view), conceded that the evidence sought to be led under ss 97 and 98 by the Crown could not satisfy the requirements of either of those sections. See Lockyer; (1996) 89 ACrimR 457; Lock (1997) 91 ACrimR 356. and AH. (1997) 42 NSWLR 702. 16 Without attempting to be exhaustive in this regard, three factors which militated against the evidence satisfying the abovementioned sections are that the events involving the two complainants occurred some four or five years apart, that the alleged sexual misconduct against the two complainants could not be classified as bearing striking similarities, and the five year age difference between the complainants. It could not be said that the probative value of the evidence (to the extent that it existed) substantially outweighed any prejudicial effect, within the meaning of s101(2) of the Evidence Act. 17 After some discussion the Court briefly adjourned to allow the Crown Advocate to consult with the Director of Public Prosecutions. Having thus consulted, the Crown Advocate formally informed the Court that the Director, having considered the future conduct of these proceedings, has concluded that the proper course would be to present separate indictments and that is the course he proposes to follow. He has also come to the view that in the respective trials it would not be appropriate for the Crown to seek to have the evidence of one complainant led in the trial involving the other complainant. 18 In those circumstances it appeared to this Court that the appropriate course would be to dismiss the appeal. However at the request of Mr Ramage QC for the applicant, we deferred making a final order to allow him to consider whether that course might result in some possible disadvantage to the applicant in relation to costs. Accordingly the Court reserved its judgment and gave counsel for the applicant 24 hours in which to file submissions, if he were minded to do so, in relation to the question of costs and the Crown Advocate was granted a further 24 hours to file any submissions in reply, if he were minded to do so. No such submissions have been filed with the Court. In the circumstances, therefore, the order of the Court must be that the application for leave to appeal be granted and the appeal dismissed, because there is now no issue between the parties insofar as separate trials are concerned. 19 Before leaving this matter, however, reference should be made to some brief discussion during the course of argument as to the procedure adopted before Judge Garling to resolve the notice of motion including, in particular, the calling of the complainant TH on the voir dire. 20 Although it is not completely clear, it would appear from the discussion before this Court, that the District Court was purporting to deal with the notice of motion, insofar as it related to the admissibility of evidence, in reliance upon r11 of Pt53 - Criminal Procedure Rules - of the District Court Rules. 21 Insofar as it is relevant, r 11 provides: "(1) The Court may order that an inquiry by way of a voir dire into the admissibility of any evidence or as to the capacity of a witness to give evidence be had, before the trial Judge, at any stage of any proceedings whether before or after the jury is empanelled. (2) Before commencing any inquiry ordered under subrule (1) the Court shall require the accused person, if he has not already pleaded to the charge against him, to so plead". 22 If it were intended, in the instant case, that the question of admissibility of the proposed evidence was being dealt with under r11, then of course there was an irregularity in that the applicant had not been arraigned and required to plead to the indictment. Of course, that is perfectly understandable because it was his application that the counts be severed and that there be separate trials. A plea would, therefore, have been inappropriate. However, it was inappropriate for the Court to have taken evidence on the voir dire in these circumstances. 23 Although in the events which have happened, it has become a matter of no consequence in this particular case, it was, in our view, inappropriate for the question of possible concoction between the complainants to be heard concurrently with the motion for separate trials. Except in special circumstances (which do not exist in this case) the question of possible concoction should be dealt with by the trial judge before whom the accused is arraigned and enters a plea. 24 In the District Court, r11 provides an appropriate procedural vehicle for such questions of possible concoction to be resolved by the trial judge. It must be remembered that it is the trial judge by whom all questions of admissibility or otherwise of evidence are to be resolved. 25 The point should also be made that before the District Court orders an inquiry under r11, there should be sufficient justification for so doing. In other words "fishing expeditions" should be discouraged. 26 The order of the Court is that the application for leave to appeal is granted and the appeal is dismissed.

Regina v GLC

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