Regina -v- John David VEITCH [1999] NSWCCA 185

COUNSEL : Mr D Howard - Respondent/Crown Mr P Hamill - Appellant SOLICITORS : C K Smith - Respondent/Crown TA Murphy - Appellant CATCHWORDS : Criminal law - sexual offences by stepfather against stepson - three offences charged - evidence given of five occasions when offences committed - whether relationship evidence or tendency evidence - purpose to be made clear by the Crown and directions given by trial judge accordingly. ACTS CITED : Crimes Act, 1900, S 66C(2), S409B(3)(b). Evidence Act, 1995, Ss 97,98 and 101 R -v- AH (1997) NSWLR 702 @ 708 et sec Graham -v- The Queen (1998) 72 ALR 1491 R -v- Beserick (1993) 30 NSWLR 510 @ 515 B -v- The Queen (1992) 175 CLR 599 @ 610 R -v- Ball [1911] AC 47 @ 71 Pfenning -v- The Queen (1995) 182 CLR 461 @ 526 CASES CITED: R -v- Harvey (NSWCCA - 11.12.96 - unreported) R -v- Lockyer (1996) 89 A Crim R 457 @ 459 R -v- Lock (1997) 91 A Crim R 536. Harriman -v- The Queen (1989) 167 CLR 590 @ 597-599 S -v- The Queen (1989) 168 CLR 266 @ 275 R -v- Foley (NSWCCA - 05.06.96 - unreported) M -v- The Queen (1994) 181 CLR 487 DECISION : Appeal allowed.; Conviction and sentence quashed.; New trial ordered.

Wednesday, 14 July, 1999 REGINA -v- John David VEITCH

1 ABADEE J: I agree with the reasons of Ireland J and the orders he proposes.

IN THE COURT OF CRIMINAL APPEAL

Wednesday, 14 July, 1999 REGINA -v- John David VEITCH

2 IRELAND J: The appellant was indicted, firstly on ten charges relating to sexual offences committed against his step-daughter, who was then above the age of 10 years and under the age of 16 years, and was under his authority. On 24 November, 1997 the appellant pleaded guilty to three of those offences which were in contravention of S 66C(2) of the Crimes Act, 1900. The Crown accepted those pleas in full discharge of the indictment. An offence under S 66C(2) carries a maximum penalty of 10 years penal servitude. 3 On 26 November, 1997 the appellant was further indicted on three charges of sexual intercourse (penile/anal intercourse) with his step-son, E.D., who was then also above the age of 10 years and under the age of 16 years and who was also under the authority of the appellant. 4 These offences were also in contravention of S 66C(2). The offences allegedly occurred between June, 1987 and December, 1988 when the victim was 14 to 15 years of age. 5 To the latter indictment the appellant pleaded not guilty. Following a trial before Acting Judge Coolahan and a jury of twelve in the Newcastle District Court, the appellant was found guilty on all three counts and duly convicted. He was sentenced on 28 November, 1997 to a minimum term of 6 years penal servitude with an additional term of 2 years on each of the six counts in the two indictments upon which he was convicted, all sentences to be served concurrently. 6 The Crown case presented at trial depended entirely upon the jury accepting the evidence of the complainant, who was described as a "slow learner", in that he was developmentally delayed and had been placed in a slow learners class at high school. 7 The complainant was born on 11 October, 1973. In 1981 some years after the death of his father, his mother married the appellant. Towards the end of 1984 the family, which was then comprised of the complainant, his two sisters, his mother and the appellant, moved to the Newcastle area residing at Wallsend. 8 During the period that the complainant was a student at Wallsend High School, i.e. between 20 July, 1987 and 24 June, 1988, the complainant said that he was punished for running into a trailer and was "grounded". The complainant was forbidden by the appellant to play or watch TV, and spent most of his time in his bedroom. He was nevertheless attending school. 9 The complainant gave evidence that the appellant offered to take him off the "grounding" if the complainant would permit anal intercourse. Ultimately this took place and the complainant described the event and said that he was, at the time, crying and felt sick. 10 The complainant gave evidence that the appellant threatened that he would hurt the complainant's mother and his sisters if he told anyone what had occurred. 11 The second incident of anal intercourse occurred whilst the members of the family were living at Woodberry. The offence occurred in a shed in which hay was kept adjacent to a paddock where horses were kept. The complainant was threatened with "grounding" unless he complied with the appellant's wishes and threats were made concerning the complainant's mother if the complainant told anyone what had occurred. 12 The third offence allegedly occurred in the family home whilst the complainant was watching television. On this occasion there were also threats of "grounding" if the complainant did not comply with the appellant's wishes to engage in anal intercourse. 13 The complainant gave evidence that the appellant had engaged in penile/anal intercourse with him on a total of five occasions. He could not recall where the occasions, other than those specifically referred to in the three counts on the indictment, had occurred. 14 The complainant gave evidence that at some time prior to December, 1988 when he left school, the appellant moved out of the family home, as did also the complainant's two sisters. Just prior to Christmas, the complainant and his mother moved to Mayfield and stayed with friends, Michael and Dianne Jones. The complainant gave evidence that he had not told anyone about what had happened to him because of the threats made by the appellant against his mother and his sisters. 15 The complainant gave evidence that he told Michael and Dianne Jones about what had happened to him a couple of months after he had moved in with them. He thought his mother had been present when he made this disclosure, but could not remember. The complainant gave evidence that he subsequently complained to other people, but at no time did anyone suggest to him that he should go to the police. 16 The complainant gave evidence of having served some time in custody for a break, enter and steal offence in 1993 and upon his release on New Years' Day in 1994 he went to live with his mother for a brief period before moving into the appellant's house. He said that he did this because he had nowhere else to go. He said that he was no longer frightened of the appellant because he knew he could stand up for himself. The complainant eventually moved out of the appellant's house because the appellant had said something which upset him. The day after he moved out, he went to the police because "I didn't want him to stay out and hurt any other little kids". This occurred in June 1996. The complainant also gave evidence that he had complained to his sisters about the appellant at around the same time that he went to the police. He had also complained to Professor McConachie saying "My step-dad sexually assaulted me". 17 Dianne Jones gave evidence that the complainant and his mother stayed at her house at around Christmas 1988. At that time the complainant had told her that he was very upset at the thought of returning to live with the appellant saying that "he touches my Joe". She said that at that time she did not understand what he meant by use of the word "Joe". She said that her husband Michael and the complainant's mother were also present. Her evidence was that between the end of 1989 and the beginning of 1990 she had a further conversation with the complainant and that he used the word "Joe" again in reference to his penis. 18 The complainant's mother gave evidence that one day "in the last year and so since" the complainant had told her that the appellant used to do things to him which he did not want him to do but which he let him do because he could get off punishment. The complainant had also told her that "when they used to go and feed the horses John used to say 'I'm going to fuck you'". 19 The appellant gave evidence and was cross examined. He denied all the allegations made by the complainant and gave evidence of having had a stroke in 1992 which affected his short term memory and mental stability. 20 In cross examination of the complainant, counsel for the appellant sought to establish that the complainant had a motive to make false allegations against the appellant and that the allegations of the complainant were in fact false. The complainant denied these assertions. 21 When the appellant was escorted by the police officer, Senior Constable Heywood, to Newcastle Police Station he denied that he had been sexually involved with the complainant.

Ground 1 - the complaint evidence 22 The Crown led evidence of complaint to Mr and Mrs Jones, Mrs Dougherty, the complainant's mother, his two sisters and Professor McConachie. 23 Two only of these witnesses gave evidence (Mrs Jones and Mrs Dougherty). The complaint to Mr and Mrs Jones was the most immediate. Mrs Jones gave evidence that this complaint was "before 1988" (T.67.58). 24 It was open to the jury to accept that this complaint was made some two weeks after the end of the period in which the offence alleged in the third count occurred (i.e. between 24 June, 1988 and 14 December, 1988). There is the further inference of contemporaneity available from the use by Mrs Jones of the present tense in saying "he touches my Joe". 25 The complaint evidence relating to the complainant's sisters is not capable of being fixed in time, nor was evidence led of what was said by the complainant to his sisters. 26 The evidence of complaint to Professor McConachie was established as being some years after the offences allegedly occurred. 27 The exchange between counsel and the learned trial judge at T.63 makes it plain that the evidence relating to Professor McConachie was adduced to re-establish credibility as a prior consistent statement pursuant to S 108(3) of the Evidence Act, 1995. Counsel for the appellant at trial, it seems to me, accepted that situation. 28 The complaint evidence insofar as it relates to the complainant's sisters, his mother and to Mr and Mrs Jones is said, on behalf of the appellant, to lack that degree of "freshness" necessary to attract S 66 of the Evidence Act as explained in Graham -v- The Queen (1998) 72 ALR 1491. 29 The point was not taken at the trial (the objection to the evidence as it related to Professor McConachie was on a different point) and leave is required under rule 4 to argue this point. 30 For other reasons, to which I shall shortly make reference, this appeal, in my view, should succeed. Accordingly, it is unnecessary to resolve the issues raised in this ground of appeal. 31 However, it is to be noted that Graham's case was decided after the trial in the present case concluded and in the light of the assistance now available from what has been said by the High Court, at any new trial further consideration will no doubt be given as to the precise nature of complaint evidence, if any, to be presented at trial and in due course, the use which may be made of it.

Ground 2 - evidence of other sexual acts. 32 (i) Evidence which implied or suggested that the accused had committed other offences erroneously was admitted before the jury. 33 (ii) Alternatively, his Honour the learned trial judge failed adequately to direct the jury in relation to the limited basis upon which such evidence was admitted. 34 During the course of the complainant's evidence in chief, the trial judge granted leave, pursuant to S 409B(3)(b) of the Crimes Act, to lead evidence of the "sexual relationship" between the accused and E.D. in accordance with paragraph 25 of the complainant's statement of 19 June, 1996 (see judgment 25 November, 1997). The application was opposed by counsel for the appellant. 35 Pursuant to such leave, the following evidence was led at T.21 (25/11/97):- "CROWN PROSECUTOR: Q. Mr Davison, you've told the court about these three times when you were with the accused and you say he put his, to use your expression, his "doodle into your bottom or your backside?" A. Yes. Q. Did he do that to you on any other occasions? A. Yes. Q. Where were you living when he did it on the other occasions? A. I'm not too sure. Q. the one you told me about where you'd been grounded and the floodlight was being fixed, was that the first time that it happened? A. Yes. Q. And the one you told me about where when mum was off at the hospital, nursing home at work-- A. Yes. Q. - - was that the last time it happened? A. Yes. Q. And the only two places you lived in that time was either at Wallsend or Woodberry is that right? A. Yes. Q. Are you able to tell me during that time on how many times he would have put his "doodle in your backside" for? A. About five. Q. About five? A. Yeah. Q. Can you recall where any of the other occasions occurred? A. Can't remember." 36 The purpose for which this evidence was led by the Crown was to establish the "sexual relationship" between the accused and E.D. 37 In his judgment Judge Coolahan regarding paragraph 25 of the complainant's statement said:- "… what the complainant is talking about is acts of sexual intercourse similar, if not identical to the ones he has already deposed to with the same modus operandi and it seems to me that evidence of this falls squarely within the decision in Chamelos (sic) and that the application should be granted." 38 In his summing up to the jury, the trial judge said, commencing at p 16:- "Now he gave some evidence then that he, that is the accused, had had sexual intercourse with him on other occasions between the first count in the indictment and the last count, and he said as I understand his evidence that the accused had sexual intercourse with him in the same manner about five times in all. The reason that evidence is admissible is to put the Crown case in context, that is to say, if you were to accept that evidence, then it could be capable of showing a guilty passion on the part of the accused towards the complainant, and it puts three counts on the indictment into a slightly different context in the sense that there were more than just three isolated occasions, although in this case it would seem that there were only another two according to the complainant. But of course the accused is not charged with those offences, he is only charged with the three in the indictment. The evidence is simply admitted for the purpose of context and perhaps to show a guilty passion if you think that that is available in this case on the evidence." 39 The basis upon which the evidence of sexual acts perpetrated upon the complainant by the appellant, in addition to the acts which were the subject of specific charges, was identified in the separate judgment given by the trial judge as "relationship evidence" and "tendency or coincidence evidence", ("… the same modus operandi"). In the summing up to the jury, it was referred to by the trial judge as "… sexual intercourse with him (the complainant) in the same manner"; "admissible … to put the Crown case in context" and "capable of showing a guilty passion". 40 The tendency rule is expressed in S 97 of the Evidence Act as follows:- "(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible 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, if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection(1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party." 41 Further restrictions on tendency evidence and coincidence evidence, adduced by the prosecution, are to be found in S101, which provides:- "(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant." 42 The course to be adopted in circumstances where there is evidence of conduct with a sexual connotation between an accused and a complainant, other than that which is the subject of the offence or offences charged and admitted for the purposes of throwing light on their relationship, at the time of the events in question, and which may suggest "guilty passion" was considered in Regina -v- AH (1997) 42 NSWLR 702 where, commencing at 708, the following is said and warrants repeating:- "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 the 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) 175 CLR 599 at 610 (see also at 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 Pfenning -v- The Queen (1995) 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 (NSWCCA - 11.12.96 - 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. Where the Crown does wish to use the evidence of guilty passion as tending to show that the accused did do the act in question (and thus that the complainant's evidence that the accused did the act in question is more credible), it is tendency evidence and so must comply with s 97 and s 101 before it may be used for that purpose. Section 97 requires the Crown to establish that the evidence has significant probative value. That means that its degree of relevance to the events giving rise to the offence charged is important or of consequence: R -v- Lockyer (1996) 89 A Crim R 457 at 459; R -v- Lock (1997) 91 A Crim R 356. In both Harriman -v- The Queen (1989) 167 CLR 590 at 597-599 and S -v- The Queen (1989) 168 CLR 266 at 275, Dawson J has said that evidence of guilty passion, although evidence of propensity (or tendency as the Evidence Act calls it), has a sufficiently high degree of relevance as to justify its admission: see also B -v- The Queen (at 618) per Dawson J and Gaudron J. 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. Section 101(2) requires the Crown to establish that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. The prejudicial effect of tendency evidence is that the ordinary person thinks that someone with an established tendency to conduct himself in a certain way whenever a particular opportunity arises will yield to that tendency and so conduct himself in the circumstances of the particular case: Pfennig -v- The Queen (at 488). As such evidence is circumstantial in nature, the Crown must establish that there is no reasonable view of the evidence available which is consistent with the innocence of the accused: Pfennig (at 483-484,485). That is what is required by s 101(2): R -v- Lock (at 363); R -v- Foley (NSWCCA - 5.6.96 - unreported) at 8." 43 In the present case the evidence was admitted pursuant to leave granted under S 409B(3)(b) of the Crimes Act. It is unclear just how the Crown sought to use the evidence in terms of sections 97, 98 and 101 of the Evidence Act. 44 In summing up to the jury the judge, as indicated above, adverted to the evidence as being admitted "simply … for the purpose of context and perhaps to show a guilty passion if you think that that is available in this case on the evidence" (emphasis added). 45 The evidence that sexual assaults of an identical nature had occurred on five rather than three occasions was patently prejudicial. No direction was given as to the use or the limitations on the use which the jury could make of the evidence in question and no explanation was given to the jury of the contextual limitations of the evidence, or the meaning of the expression "guilty passion" as applied to the evidence. 46 In fairness it must be said that the issue was ventilated in argument before the court in the context of S 409B and no assistance was afforded to the learned trial judge by way of reference to the provisions of the Evidence Act or decided authority, ( R -v- AH was published on 27 November, 1997, i.e. the day on which the summing up was delivered and hence was not available), nevertheless, a significant error in the conduct of the trial has been demonstrated in that the purpose for which the critical evidence was introduced was not made clear and directions to the jury, appropriate to the established purpose for its introduction, were not given. This ground of appeal should be upheld. 47 Grounds 3 and 4 are abandoned, except insofar as they lend support to ground 5.

Ground 5 - the verdict is unsafe and unsatisfactory. 48 This ground may be dealt with shortly. The Crown case was wholly dependent on the evidence of the complainant. 49 It was open to the jury, notwithstanding the delay between the events complained of and the preferring of charges, to accept the evidence of the complainant and to reject the denials of the appellant. This is not a case where a review of the evidence discloses discrepancies or displays inadequacies or otherwise lacks probative force in such a way as to lead to the conclusion that there is a significant possibility that an innocent person has been convicted M -v- The Queen (1994) 181 CLR 487. 50 This ground is not made out. 51 The appellant also seeks leave to appeal against the sentence imposed in respect of the offences to which he pleaded guilty (offences against his step-daughter K), for the reason that those sentences were said in argument to be structured on the basis of totality of criminality which included the offences against the complainant E.D. 52 Such considerations, in my view, should abide the outcome of a new trial to which the appellant is entitled under Ground 2. Reconsideration by the District Court at any prior time would be premature and in any event, may prove otiose. 53 I would propose the following orders:- 54 1. The appeal is allowed. 55 2. The conviction and sentence are quashed. 56 3. A new trial is ordered. ********** IN THE COURT OF CRIMINAL APPEAL

Wednesday, 14 July, 1999 REGINA -v- John David VEITCH

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