RG v R

Q. When you say, hugging, what do you mean by that? What was he actually doing? A. Sometimes I didn't believe it was hugging because the hugs were too high. Like he'd touch our breasts, and touch our legs, and rub our back --

[DEFENCE COUNSEL]: Your Honour, I object. I object.

Q. If you can just confine your answer, [C …], to what happened to you, so what did you mean by hugging? A. He would touch my breasts and rub my legs.

Q. Are you able to tell me exactly how he would do that? A. Like he would just put his hand on my breast and gently like caress the top of my leg.

Q. And what did you feel, at this time? A. I felt scared.

Q. And did you do anything? A. No, I just pretended I was asleep and either roll over or push him away.

Q. Did your dad say anything? A. I can't remember.

Q. Are you able to say how many times this type of hugging happened? A. Most nights.

Q. And do you remember how old you were at this time? A. No.

Q. Do you remember what year it was? A. No. This used to happen regularly. It was over a long period of time." 13 Evidence was also given in the Crown case by the complainant's mother and by Z, but, having regard to the confined nature of the issue raised on appeal, it is unnecessary to go to this, except to say that Z also said that the appellant made the girls shower with him, telling them that it was necessary to do so to save water because they were in their aunt's house.

The defence case 14 The appellant gave evidence. He denied the event described by the complainant that gave rise to the charge. He gave a lengthy account of his living arrangements after the resumption of overnight contact with his daughters. He confirmed that, at his Camden home, there were three bedrooms. One was a bedroom that he occupied, with a queen size bed. Each of the other bedrooms had a single bed. Notwithstanding that, he said, he and the two girls slept together in his bed. However, he put a different complexion on this. He said that it was because the complainant would never sleep alone, and, after the first night, Z also refused to sleep alone. (It was put to the complainant in cross-examination that the reason the three slept together was because she did not wish to sleep in a separate bedroom. She answered that initially there were no beds in the other bedrooms. The beds that were there came later. She disagreed with the proposition, expressly put to her, that there were beds in the other rooms but that she did not wish to sleep there.) 15 The appellant described the girls as "clingy, needy, loving". He said that he was in the habit of cuddling them. 16 He said that he had showered the girls at Camden, but only twice. He ceased doing so because he felt "uncomfortable". He felt "unnatural" showering with his daughters, and realised that the couple of years during which he had not seen them had made a big difference in their development. He said that he had not washed them since they were five, and they had not washed him. 17 The appellant also confirmed the complainant's evidence of the sleeping arrangements at his sister's home in Picton. He expressly denied fondling or "grabbing" the complainant's breasts, or rubbing them in a sexual way. 18 Both sisters of the appellant also gave evidence in the defence case, but, again (having regard to the limited nature of the appeal) it is unnecessary to go into that evidence.

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.

[The complainant] also gave evidence of what she felt were inappropriate touches during hugs by the accused . Now if that evidence wasn't admitted you might wonder about the likelihood of apparently isolated acts occurring suddenly without any apparent reason. If the complainant … gave evidence of an isolated act of sexual misconduct, you would be entitled to think it was very odd for there to be such an isolated act between those persons. If you'd not heard about the evidence I'm talking about now, you may have thought the complainant['s] … evidence was less credible. The evidence you've heard places the complaint, her complaint, in the context of the visits on contact or access visits on weekends or week long visits and what the girls give evidence about, that is showering together at certain times and sleeping in the same bed as the accused at certain times and you've just heard evidence of that. If however the particular act charged is placed in a wider context that is the context of the visits that you've heard evidence about. That is a context of an ongoing history between the parties, then the curious feature of the complaint evidence that you've heard would disappear.

It's for this reason the law permits a wider history to be provided and you've been permitted to hear that wider history. It's to avoid artificially or unreality in the presentation of the evidence. For one incident that is the incident that was complained of and forms the subject of the indictment, for that incident to be artificially isolated and selected and for a witness to be confined to that would make it very difficult for her to proceed intelligently with the evidence. To pick out a single event as when the girls slept in the same bed together as the accused for example could leave you with a very strange and unrealistic count. Therefore it's open to the Crown to lead that evidence and that evidence has been placed in that particular context. However and this is the however, I must warn you in relation to the use of that evidence. The evidence that you've heard is called as I've said, context evidence. You must not use this evidence of other acts, that is the sleeping in the same bed, the showering together and the evidence of what [the complainant] said about inappropriate touching during hugs, you must [sic - "not" probably omitted from transcript] use that evidence as establishing a tendency on the part of the accused to commit an offence of the type charged.

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.

… the first is that the Crown is going to open and lead context evidence in relation to the accused showering and sleeping in the same bed as his daughters, this complainant and we'll hear from the other daughter, the complainant in the second trial and touching this complainant while sleeping with her . Discussed it with my friend and there's no objection your Honour and its led to show that it's not an isolated incident, to show the true nature of the relationship …" (italics added)

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."

His Honour also emphasised the need to identify the basis upon which the evidence is admitted, either as tendency or context. 38 Applying those principles to the present case, it is perfectly clear that the evidence in question was admitted, not to establish a tendency on the part of the appellant, but to establish the context in which the event occurred. The evidence of which complaint is now made, if believed, established a pattern of behaviour in which the complainant was relatively unsurprised by the conduct the subject of the charge, and made no response, nor any subsequent report. In that respect, it explains her behaviour, which may otherwise have appeared surprising and therefore implausible to the jury. 39 That that was how it was understood in the atmosphere of the trial is made clear by the request of defence counsel for a repeat of the interim direction given by the trial judge. 40 It is worthy of note that the only reference throughout the trial which could be taken to touch upon the evidence as tendency evidence was in an introduction to a question asked by defence counsel of the appellant. Early in the appellant's evidence, counsel said: "Q. I'll move onto this - what her Honour has described as contextual evidence - this other conduct. Showering, and sleeping arrangements that [the complainant] points at to say, you know, this demonstrates an interest by you in her. I want to ask you some questions about this?"

Other than that, the evidence was uniformly treated as "context" or "relationship" evidence. 41 Counsel then went on to ask questions about the resumption of contact between the appellant and his daughters. 42 Exclusion under s 135 or s 137 was never raised by defence counsel. 43 The premise upon which the ground of appeal is pleaded and based is not established. The evidence was not tendered, nor admitted, for a tendency purpose. The jury were given clear directions not to use it for such a purpose. 44 The ground of appeal must be rejected. 45 I would dismiss the appeal against conviction. 46 WHEALY J: I agree with the reasons of Simpson J and the orders that she proposes. **********

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