RG v R

[2010] NSWCCA 173

Court of Criminal Appeal (NSW)|2010-07-21|Before: Campbell JA, Simpson J, Whealy J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2010-07-21

Before

Campbell JA, Simpson J, Whealy J

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

Background 5 The appellant is the father of two daughters, EG (the complainant), born in August 1991, and ZG, born in February 1993. He was married to the mother of both girls. In about 1996 the marriage failed and the appellant moved out of the matrimonial home. For some time thereafter he had little or no contact with the girls. From about 1999, in accordance with orders made by the Family Court of Australia, the appellant resumed contact with them. Initially, this was for half days, but later he was granted contact visits on alternate weekends and part of school holidays. 6 On these occasions the girls stayed with him at his home in Camden, or at the home of his sister, at Picton. (They also stayed on some occasions at the home of another sister, but those occasions have no relevance to the proceedings.) 7 It was on a contact visit on which the appellant and his daughters stayed at his sister's home in Picton that the events giving rise to the charge occurred.

[2]

The Crown case 8 The complainant gave evidence outlining the arrangements that operated for the purpose of the contact visits. She said that when she and her sister stayed at her aunt's Picton home, all three (the appellant, the complainant and her sister Z) slept together on a mattress on the floor, with the appellant in the centre. The same occurred when the two girls visited the appellant at his Camden home. She also gave evidence that all three showered together; the appellant made the girls wash him, and he washed them. He commented on the complainant's physical development. The appellant also required the girls, when using the bathroom (it is unclear whether this was intended to be a reference to the use of the toilet), to leave the door open, in order that they would "get to know each other's bodies better". 9 The event the subject of the charge occurred in July 2003, a month before the complainant's twelfth birthday, and shortly before her Year 6 farewell. The appellant and the two girls were staying at the Picton home, although the girls' aunt, the appellant's sister, was away. 10 The three of them were on the mattress. Z was asleep, having gone to bed earlier. The appellant was in the centre, between the two girls. The complainant was lying, facing outwards. She felt something "grab" her bottom. She realised it was the appellant's hand. She got out of the bed and went to the bathroom. She returned, and lay at a distance from the appellant. He looked to see if she were awake. She feigned sleep. The appellant put his hands down her pyjama pants, inside her underwear, and rubbed the outside of her vagina. This went on for about two minutes, although, she said, it felt longer. 11 Eventually, the complainant fell asleep. The following morning the appellant asked if she had had a good sleep. He had a "smirk" on his face. 12 The complainant also gave evidence, to which objection was taken, of other conduct of the appellant. I extract the following from the transcript: "Q. Is there any particular way your dad used to sleep? A. He always used to sleep hugging one of us.

[14]

The appeal 19 A single ground of appeal was pleaded and argued. It was: "The trial judge erred in law by failing to adequately distinguish between tendency evidence and context evidence. Further the trial judge permitted tendency evidence to be led before the Jury otherwise than in accordance with ss 97 and 101 of the Evidence Act 1995 (NSW)." 20 The evidence the subject of the ground is confined. It is limited to that extracted above at para [12]. The ground of appeal does not extend to the evidence of the sleeping arrangements in general, nor of showering, about which no complaint is made. 21 As the extract from the transcript shows, defence counsel objected to the evidence. What the transcript does not reveal is the basis for the objection, any argument put by defence counsel or by the trial advocate, or the ruling. It does appear, from what follows the argument, that some limitation was placed upon the evidence but what that was is not disclosed. 22 That evidence was given on 10 June 2009, the first day of the trial. 23 The following day, probably after the lunch break (according to inquiries made on behalf of the Crown) the trial judge gave the jury directions concerning the evidence. These are transcribed as follows: "The other thing I'm going to tell you about is in relation to a legal direction I'm going to give you about the evidence you've just heard and it's a direction in relation to what we call context evidence. You heard evidence given from the last two witnesses who gave evidence, that in normal circumstances might not be allowed to be put for (sic) you. It is allowed to be put to you for the purpose of making the circumstance of the specific offence charged more intelligible and it's important that I explain to you the relevance of the evidence that you've heard. It was admitted solely for the purpose of placing the complainant['s] … evidence of the particular act relied on by the Crown and that's referred to in your indictment to prove the charge on the indictment as to what the Crown says is a realistic context. This is evidence of the children [the complainant] and [Z], they both gave some evidence of them showering together with the accused and the sleeping arrangements.

[17]

You must not substitute the evidence of the other acts for the evidence of the specific offence on the indictment. You must not reason that because the accused may have acted in a particular way that he must have done the offence alleged on the indictment. The evidence insofar - the evidence so far in relation to the offence charged relates to the particular type of touching that the complainant … says occurred and as is specified on the indictment. I will give you further directions as time goes on and I'll give you further directions in relation to summing up. But I thought it important as soon as that evidence from [the complainant] and [Z] had been heard that you be able to place what they said in a wider sense as a context for you to hear evidence of the particular offences that is charged …" (italics added) 24 At the conclusion of the evidence, in the absence of the jury, there was a discussion between the trial judge and counsel concerning the directions to be given to the jury. Defence counsel raised the issue of what he called "the contextual evidence direction" and expressly requested that it be repeated in the same terms. Her Honour acceded to that request, and, in the body of the summing up, substantially repeated what she had said the previous day. 25 It is to be observed that the ground of appeal makes no complaint about the directions that were given in any respect. What it asserts is that the evidence in question was tendency evidence, and was therefore required to be dealt in accordance with the statutory provisions relating to tendency evidence. Those provisions are s 97 and s 101 of the Evidence Act 1995. 26 Fundamental to the ground is the premise that the evidence in question is properly characterised as tendency evidence. If so, then it is correct that its admissibility is governed by those specific provisions. Put briefly, s 97 prohibits the admission of evidence of the character, reputation or conduct of a person or a tendency that a person has or had, for the purpose of proving that the person has or had a tendency to act in a particular way or to have a particular state of mind if (relevantly) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value. Where evidence is tendered as tendency evidence under s 97, inquiry about the probative value of the evidence, in the context of evidence already given or anticipated, is essential: R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308. 27 Section 101 places a further restriction upon the use, in a criminal proceeding, of tendency evidence. Such evidence (about a defendant) cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. 28 The Dictionary to the Evidence Act defines tendency evidence as meaning evidence of a kind referred to in s 97: "that a party seeks to have adduced for the purpose referred to in that sub-section." 29 In other words, where evidence is tendered (in this case, by the prosecution) against a defendant for the purpose of proving that that defendant had a tendency, the Evidence Act imposes two significant hurdles before it can be admitted (s 97(1)); or used against the defendant (s 101). The purpose for which the evidence is tendered is crucial. 30 As I have said, the ground depends upon the premise that the evidence was, indeed, tendency evidence. 31 A simple answer to the proposition of the appellant lies in the Dictionary definition of "tendency evidence". "Tendency evidence" is evidence tendered for the purpose of proving a tendency. The purpose in this case was not to prove that the appellant had a tendency; it was tendered for another purpose, well recognised in criminal law, particularly criminal law relating to sexual abuse of children. That purpose was to establish a "context" in which the act the subject of the charge was committed. Evidence of this kind has, over the years, come to be called "relationship" or "context" evidence. 32 That this was the Crown's express purpose in tendering the evidence was made manifestly plain in discussions that took place before the jury was empanelled. During the course of these discussions, the trial advocate said: "… there are a couple of things that aren't issues but I should draw to your Honour's attention.

[19]

Defence counsel did not dissent from what the trial advocate had said. 33 The distinction between tendency evidence and "context" evidence has been analysed in a number of decisions of this Court, for example, Qualtieri v The Queen [2006] NSWCCA 95; 171 A Crim R 463; DJV v R [2008] NSWCCA 272; JDK v R; R v JDK [2009] NSWCCA 76; 194 A Crim R 333 (in which the salient passages from DJV were extracted). 34 While it is tempting to suggest that, since the stated purpose of the tender of the evidence was not to establish a tendency, the Dictionary definition excludes the application of s 97 and s 101, to do so would be to over simplify. While neither the District Court nor this Court ought lightly to find that a purpose stated by a responsible trial advocate or Crown prosecutor is not the true purpose of the tender of the evidence, neither Court is bound by such a statement. In some cases at least, it will be necessary for the trial court, or this Court, to examine the reality of what is sought to be achieved by the admission of the evidence. If that analysis shows that, notwithstanding that the Crown's stated purpose was to establish a "context", or a "relationship", the reality is that the evidence was tendered to establish a tendency, then s 97 and s 101 must be applied. 35 Here I see no reason not to accept the Crown's statement of the purpose of the evidence as correct (nor did defence counsel at trial). Accordingly, it was not necessary to consider s 97 or s 101. The Court must then determine whether, as a matter of reality, the evidence could have been used for a tendency purpose. If so, even if it were admissible for other purposes, it would be necessary to give an appropriate direction. Here, appropriate directions were given. 36 Further, even if it is accepted that the evidence is tendered as "relationship" evidence - questions of admissibility (or, more accurately, questions of whether it ought to be admitted, or excluded) remain. It is necessary to consider, firstly, its relevance to the issues, and secondly, whether it ought to be excluded under either s 135 or s 137 of the Evidence Act. 37 The position was summed up by McClellan CJ at CL in JDK. His Honour said: "Whatever be the position under the common law, the accepted position in New South Wales is that evidence of 'relationship' may be admitted unless excluded after consideration has been given to s 135 or s 137 of the Evidence Act : Qualtieri; R v AH (1997) 42 NSWLR 702; R v Fraser (NSWCCA, unreported, 10 August 1998). However, it will only be admissible if it is relevant because it may assist in the evaluation of other evidence going to a fact in issue. In particular it may provide the 'context' in which to understand a narrative in the sense suggested by Gleeson CJ and Heydon J in the passages above [in HML v R [2008] HCA 16; 235 CLR 334]. Unless the other evidence in the trial and the issues which it raises make it relevant to prove the 'context' in which the alleged offence or offences occurred, it will be almost inevitable that the discretion should be exercised to exclude the evidence. In most cases relevance will be occasioned by an apparent lack of complaint by a complainant whose will has been overborne from a young age or who has feared the consequences of making a complaint about a family member. Fear of not being believed or family breakdown may explain a lack of complaint when a charged act occurs. If the evidence is admitted the dangers of its misuse are significant and the judge's directions to the jury must be clear so that the jurors understand the limited purpose for which they may consider that evidence."

RG v R

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Judgment (22 paragraphs)

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