Ground 7 - Her Honour erred in her directions as to the use to which evidence relating to criminal acts not charged in the indictment might be put by the jury.
98 The evidence the subject of these grounds of appeal is referred to in her Honour's directions to which exception is taken. It is, I think, necessary to quote what her Honour said:-
"The second basis on which the evidence of sexual contact on other occasions between the accused and Mrs HL and TP involving the use of objects, either sex aids, various household items or carrots, is led is to show other conduct on the part of the accused or a tendency to act in a particular way on other occasions from which you are invited by the Crown to come to the conclusion that the accused committed the relevant specific offences contained in the indictment and for this purpose those relevant specific counts are count 1, count 6, count 7. You are entitled to take this evidence into account in this way, that is evidence that shows other conduct on the part of the accused, or a tendency to act in a particular way, that is involving the use of objects, and you are entitled to come to the conclusion, by taking that other evidence into account, that he in fact committed the offences charged in counts 1, 6 and 7 but there are some specific matters of which I must warn you.
First of all you would only be entitled to use the evidence in that way if you are satisfied beyond reasonable doubt of the truth of the general allegations made by Mrs HL.
Second, because the evidence is of a circumstantial nature you would not only have to be satisfied beyond reasonable doubt that the evidence is true but also that there is no explanation for this behaviour which is consistent with the innocence of the accused of those three specific charges in the indictment.
In relation to this tendency the Crown also relies on the presence of those objects found in the flat by the police as tending to show that the accused had a tendency to act in a particular way on other occasions. You will remember, in this regard, that the police officers attended at the home unit on 15 August. They gained access to the red toolbox and in that red toolbox they discovered the various items that have been referred to as sex aids, vibrators, penis sheath, false penis and one other item and they also, in the flat, took possession of the Brut bottle, the wooden statue, the bobbin or cotton reel item and those other items that have been referred to by Mrs HL as having been used by the accused on more general occasions, excluding the wooden statue, to insert into her vagina. The Crown relies on the possession of the accused of these objects and the finding of them in the unit in the way the evidence discloses as also showing a tendency on the part of the accused to act in a particular way.
You would be entitled to take that evidence in regard as establishing that tendency but only if you were satisfied beyond reasonable doubt of the truth of the allegations that Mrs HL made about these other items being used by the accused in the way she said and, further, only if you were satisfied that there was no other explanation consistent with the innocence of the accused for them being found.
In relation to this later aspect you will remember that the evidence of the accused was that he agreed that the sex aids were his and that he had owned them for some two to three years before 15 August. He maintains that they were never used at all and certainly not used whilst he was living with Mrs HL at Lakemba. His evidence in relation to having those objects was that on an earlier occasion, some time previously, he had had a joke with a female acquaintance and bought her a vibrator, at her request, for her birthday as a bit of a joke and as I understand his evidence that thereafter he bought these other objects, the vibrators, for similar purposes.
Further, in relation to these sex aids, the Crown submits that you would regard, as supportive of Mrs HL's contention, in general terms that these objects were used on her to penetrate her vagina."
99 Her Honour then made reference to some evidence concerning findings of DNA and the significance of these and continued:-
"On the other hand you might be of the view that the DNA evidence is inclusive or that there is some other explanation for the DNA material which could be that of Mrs HL being on the vibrator which is consistent with the innocence of the accused.
As I have said, in order for you to use the more general sexual evidence and the evidence on the finding of the sex aids and the other household items which Mrs HL claims were used on her in sexual manner, as evidence of a tendency on the part of the accused to act in a particular way, you could only do that if you were satisfied beyond reasonable doubt of the truth of Mrs HL's allegations and, further, if you were satisfied that there was no explanation consistent with the innocence of the accused for his use of these implements.
The Crown relies on the possession of the accused of these objects and the finding of them in the unit in the way the evidence discloses as also showing a tendency on the part of the accused to act in a particular way.
You would be entitled to take that evidence in regard to establishing that tendency but only if you were satisfied beyond reasonable doubt of the truth of the allegations that Mrs HL made about these other items being used by the accused in the way she said and, further, only if you were satisfied that there was no other explanation consistent with the innocence of the accused for them being found."
100 The DNA evidence was to the effect that DNA which may have been that of Mrs HL was found on the wooden ornament and one of the vibrators. Both objects also contained some DNA which was not hers. So far as the tests which were done went, the DNA which might have been hers, according to the evidence, is found in one person in 21,000 of the general Australian population, one in 11,000 of persons of Chinese origin and one in 7,000 of persons of Korean origin. Figures for persons of Vietnamese origin were not available. Mrs HL referred to herself as Vietnamese.
101 Her Honour had earlier also told the jury that they could use the evidence referred to in the passages quoted and other evidence as indicating the general relationship between the Appellant and members of his household and no exception is taken to that direction or to the admissibility of the evidence referred to in that context. In effect the complaint is that expressed in ground 7.
102 To place the remarks of her Honour in context it is convenient to refer to the details of the case a little more fully. The first count of the indictment was concerned with an incident in which Mrs HL contended that the Appellant had inserted in her vagina the wooden ornament referred to by her Honour. Count 7 was concerned with an incident in which Mrs HL claimed that, at the instigation of the Appellant, a carrot had been inserted in TP's vagina. Count 6 was concerned with an attempt by the Appellant to achieve a similar result. Mrs HL had given evidence to the effect that the Appellant had inserted in her vagina on occasions not the subject of charges the remaining objects referred to by her Honour and others of a similar nature. The Crown obtained from Mrs HL evidence that she did not want the Appellant to use them but that "he persuaded me and he explained to me that they were used to give me some new sensations and if I resisted or refused he would hit me".
103 Her Honour's direction that the jury could take into account the Appellant's possession of the objects to which she referred as showing a tendency on the part of the Appellant to act in a particular way only if the jury was satisfied that there was no other explanation consistent with the innocence of the Appellant for them being found strikes me as pointless. The jury could not possibly have been satisfied that there was no explanation consistent with innocence for the presence in a domestic household of a bottle of after-shave lotion and a cotton-reel. Indeed Mrs HL seems to have said that the after-shave lotion was for the Appellant, as distinct from herself, to use. Similar comments may be made in relation to the sex aids. Such objects are available through some retail outlets or responses to advertisements in magazines and there could be no justification for the jury concluding that possession of them demonstrated participation in forced or criminal sexual activities and was inconsistent with innocence.
104 The same remarks may be made concerning her Honour's directions in relation to Mrs HL's evidence to the effect that the Appellant had used such objects. Of course, if the jury accepted Mrs HL's evidence that the wooden ornament had been used on the occasion the subject of the first charge, then there was no need to resort to her evidence as to the use of these objects on other occasions, at least so far as that charge was concerned. But, assuming the jury accepted Mrs HL's evidence as to that use on occasions not the subject of the charges, they could not possibly "be satisfied beyond reasonable doubt that … there is no explanation for this behaviour which is consistent with the innocence of the accused on those three specific charges in the indictment". To consider but the identity of the participants, there is a radical difference between the situation of a man and woman living as husband and wife and that of the man and a daughter, particularly a young daughter of that "wife". Explanations for conduct with Mrs HL consistent with the Appellants' innocence in respect of the charges involving TP is that Mrs HL was living as his wife and TP was not and that TP was young and Mrs HL's daughter. And use of such objects on some occasions is perfectly consistent with the incident the subject of the first count never having happened or, as it seems to have been the first such occasion, Mrs HL being persuaded, however reluctantly, to consent on that occasion.
105 The evidence concerning the objects and their use in sexual activities other than those the subject of charges should not have been left to the jury in the terms that it was. Indeed if the law required her Honour to direct the jury in the terms she did, the issue of tendency arising from the evidence referred to in the passages I have quoted should not have been left to the jury at all.
106 There can be no doubt that the evidence to the effect that the Appellant inserted the various objects in Mrs HL from time to time tended to show that the Appellant had a tendency to act in a particular way, viz. insert inanimate objects in her vagina and, it may be inferred, vaginas generally or, at least, those available to him. Counts 1, 6 and 7 involved that sort of activity and the evidence was therefore relevant and, if not excluded by, or pursuant to other sections of the Evidence Act 1995, admissible - s56. In that activity of that nature might not be thought to be common, such evidence also had significant probative value and was thus not rendered inadmissible by s97 of the Act or unavailable for use as tendency evidence - see s95. (It was accepted that the notice requirements of s97 had been met.)
107 However, s101 imposes a further requirement which had to be satisfied. So far as is presently relevant, that section provides that in criminal proceedings:-
"(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against a defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."
108 The operation of that provision has been the subject of consideration on a number of occasions, one of which was the decision of this Court in R v AH (1997) 42 NSWLR 702. At p 709, Ireland J, with the concurrence of the other members of the Court said:-
"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 (1995) 182 CLR 461 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 S101(2): R v Lock (1997) 91 A Crim R 356 at 363; R v Foley (CCA, 5 June 1996, unreported) at 8."
109 In Pfennig v R (at 482-4) Mason CJ, Deane and Dawson JJ said (omitting references):-
"Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here "rational" must be taken to mean "reasonable" and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect and, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.
… that evidence as has been said, will be admissible only if its probative value exceeds its prejudicial effect. But that statement, it seems to us, is of little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused. In stating the question in that way, we point out … that the purpose of the propensity evidence is to establish a step in the proof of the prosecution case, namely, that it is to be inferred, according to the criminal standard of proof, that the accused is guilty of the offence charged. Accordingly, the admissibility of the evidence depends upon the improbability of its having some innocent explanation in the sense discussed."
110 In Hoch v R (1988) 165 CLR 292 at 296, Mason CJ, Wilson and Gaudron JJ had taken a similar view in respect of similar fact evidence:-
"In Sutton (1984) 152 CLR 528 at 564 Dawson J expressed the view, with which we agree, that to determine the admissibility of similar fact evidence the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused."
111 In Gipp v R (1998) 194 CLR 106 at [76], McHugh and Hayne JJ seem to have accepted this view (I again omit references):-
"If the evidence of sexual history had been directed to specific incidents, although not the subject of charges, the learned judge would have been entitled to direct the jury that if they found one or more of those incidents proved, they could use such a finding or findings as proof of a "guilty passion" in support of the charges in the indictment. In that event, it would have been necessary to direct the jury that these incidents as well as the charges had to be proved beyond reasonable doubt."
112 These cases in the High Court were, of course, decided in terms of the common law and, although the terminology used in sub-section 101(2) is virtually identical to that employed in the High Court cases from which I have quoted, I must confess it does not seem to me that one should too readily transfer statements made in that context to the terms of the sub-section or substitute the tests adopted at common law for the terms of the Evidence Act.
113 In the first place, the scheme of the Evidence Act in making logically probative evidence admissible unless excluded, apparent in the terms of ss55, 56 and, for example, ss97 and 101, is arguably different from that taken by the common law in relation to the admission of similar fact or propensity evidence. - see the discussion of the topic in Pfennig v R (supra) at 475-9 and 512. Secondly, the concept of probative value outweighing or substantially outweighing the prejudicial effect of evidence is to be found not only in s101(2) but also in sections 135 and 137. The rationale of the majority in Pfennig v R to the effect that
"Only if there is no (rational view of the evidence that is consistent with the innocence of the accused) can one safely conclude that the probative force of the evidence outweighs its prejudicial effect and, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle."
even if otherwise correct, is not easy to apply in the case of s 135 which clearly does involve the exercise of a discretion, and may have far reaching consequences in the application of s137. The terms of these sections were not before the High Court in Pfennig v R and neither were they considered in R v AH . At least on first impression, their similarity and wording is relevant to the interpretation or operation which should be given to S102(2).
114 Thirdly, in those High Court cases and indeed most wherein there has been discussion outside the context of the Evidence Act of evidence of tendency, propensity, similar facts or coincidence, the discussion has been against a background where the evidence under consideration has revealed the commission by an accused of other criminal activity, either serious in its own right or serious relative to the charge - Gipp v R (1998) 194 CLR 106, Pfennig v R (1994-5) 182 CLR 461, Hoch v R (1988) 165 CLR 292. Sutton v R (1983-4) 152 CLR 528, Markby v R (1978) 140 CLR 108, DPP v Boardman (1975) AC 421, Harris v DPP (1952) AC 694, Makin v AG (NSW) (1894) AC 57 are examples. Of course I do not suggest that has been the universal situation - see e.g. Martin v Osborne (1936) 55 CLR 367.
115 Commonly that other criminal activity has been regarded as greatly prejudicial and many of the statements in the cases have to be considered with that background in mind. Sub-section 101(2) applies to situations where the conduct sought to be tendered is non-criminal, criminal but only slightly prejudicial, and criminal and gravely prejudicial. The conduct may be slightly or strongly probative. Against that background, the reference in the sub-section to probative value substantially outweighing prejudicial effect seems to me to require a judgement or weighing exercise quite different from the approach taken in the terms of the High Court cases from which I have quoted.
116 I confess also to sharing the difficulty McHugh J had in Pfennig v R in understanding the logic behind the principle. At least as expressed in R v AH it seems to say that admissibility depends upon the circumstantial evidence of similar facts, of itself, demonstrating guilt. If the common direction that a jury may not convict in reliance upon circumstantial evidence unless guilt is the only rational inference in the circumstances is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt - Shepherd v R (1990) 170 CLR 573 at 578 - and it is only essential ingredients of each element of an offence that must be proved to that standard - Shepherd v R at pp 575, 580 & 594, Gipp v R (1998) 194 CLR 106 at [79], per McHugh and Hayne JJ, R v Pantoja (unreported CCA, 5 November 1998) at p 31-33, R v Merritt [1999] NSWCCA 29 at [70] R v Kotzmann [1992] 2 VR 123, c.f. Penney v R (1998) 72 ALJR 1316 at [26] - it seems somewhat illogical to say that evidence of subsidiary facts, albeit involving criminality - as propensity, tendency or similar fact evidence is both often and in this case - may only be given if there is no reasonable view of that evidence consistent with innocence.
117 Here perhaps the first, but more particularly the sixth and seventh counts, were of conduct which might fairly be described as bizarre. Evidence of the sex aids and other objects and of their use may reasonably be regarded as indicative of an unusual interest in the Appellant in the insertion of inanimate objects in vaginas. The evidence had, within s 101(2) of the Evidence Act, substantial probative value. But Mrs HL's evidence of the use of these items was accompanied by evidence (as in practical terms it had to be if the Crown case was to stand up) that she was forced to endure them. The evidence concerning the items and their use was thus prejudicial. It was no more prejudicial than the evidence of Mrs HL and TP as to the incidents the subject of a number of the charges but it was prejudicial.
118 If I felt entitled to apply s101(2) in accordance with its terms, I would regard the probative value of this evidence as substantially outweighing the prejudicial effect. However, as I have indicated, I by no means regard the evidence as so strong that "there is no reasonable view of (it) consistent with the innocence of the accused".
119 In this case, the correctness of the remarks in R v AH was not the subject of challenge and in these circumstances, I do not feel entitled to depart from them and to apply s101(2) in accordance with what seems to me to be its terms. Applying those remarks, my conclusion is that s 101(2) precluded the evidence of the sex aids and their use being used as tendency evidence.
120 The question then arises whether, having regard to the terms in which her Honour directed the jury in relation to the tendency evidence, the fact of it being left to the jury matters. In my view it does not. There is no reason to think that the jury would not have applied her Honour's remarks in the terms they were expressed. Had they done so, for reasons set forth above, they would not have used the evidence of the sex aids and Mrs HL's evidence as to their use as indicating tendency on the part of the Appellant. The evidence was properly before them on another basis so there is no legitimate complaint that its mere presence was sufficient to invalidate the verdict. These ground of appeal are not made out.
121 Ground 8
Her Honour erred in relation to the use to which the evidence of Mr Rudolf Weigner could be put by the jury
122 On this ground, I agree with Sully J.