Tasmania v S [2004] TASSC 84

Evidence Act 2001 (Tas), ss97(1), 98(1) and 101(2).

R v Pfennig [1995] HCA 7; (1995) 182 CLR 461, distinguished

R v Colby [1999] NSWCCA 261; R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433; R v Mason (2003) 140 A Crim R 274, followed

Hoch v R [1988] HCA 50; (1988) 165 CLR 292, discussed.

Criminal law - Evidence - Evidentiary matters relating to witnesses and accused persons - Impeachment of credit and admissibility of evidence as to credit - Prior inconsistent statements - What is unfavourable evidence - Inability to recall first hand hearsay.

Evidence Act 2001 (Tas), s38(1)(a).

Houston and Anor v R (1982) 8 A Crim R 392, followed.

Judgment Number: [2004] TASSC 84

1 The Crown has charged the accused with two counts of maintaining a sexual relationship. The charges are joined in a single indictment. Count 1 relates to complainant A. It alleges that the crime was committed between January 1972 and December 1978 when she was aged between 5 and 12 years. The crime is alleged to have been committed at Lauderdale and Hamilton. The evidence established that during the relevant period A was, firstly, a foster child of the accused and his wife, and subsequently an adopted child of the accused and his wife and that she lived with them at Lauderdale and Hamilton in Tasmania.

2 The second count relates to complainant B. The crime against B is alleged to have been committed between 1989 and December 1993 at Mornington and Bothwell when she was aged between 4 years and 8 years. A is now aged 37 and B will be 19 years old this month.

3 The Crown contended that the evidence on each count is admissible on the other count, either as tendency evidence or as coincidence evidence as provided by the Evidence Act 2001 ("the Act"), ss97(1) and 98(1). Mr Avery, counsel for the accused, contended that the evidence on each count is not admissible on the other count and consequently the indictment should be severed as is provided for by the Criminal Code, s326(3). It is well established that, absent good reason to the contrary, where an indictment alleges more than one sexual crime involving more than one complainant, the indictment should be severed in the proper exercise of the discretion. See Sutton v R [1984] HCA 5; (1984) 152 CLR 528 at 541 - 542; De Jesus v R [1986] HCA 65; (1986) 61 ALJR 1 at 3, 7 and 8; KRM v R [2001] HCA 11; (2001) 206 CLR 221 at par38.

4 Mr Avery conceded that prima facie, the evidence of the manner in which the accused committed the crimes on the complainants, unrelated in time and place, is so strikingly similar that the evidence of each has the requisite probative value to be admissible on the count relating to the other as tendency evidence or coincidence evidence. However, Mr Avery submitted that the evidence tending to prove one count should not be admitted to prove the other because of the provisions of the Act, s101(2), which provides:

"(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, 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."

5 The submission was that there is a possibility of joint concoction, thus impermissibly increasing the prejudicial effect and diminishing the probative value. See Hoch v R [1988] HCA 50; (1988) 165 CLR 292. The possibility of concoction would also have the effect of diminishing the probative value required to make the evidence admissible in the first place.

6 With respect to the admission of tendency evidence and coincidence evidence, I direct myself in accordance with the decision of the Court of Appeal (NSW) in R v Ellis [2003] NSWCCA 319. That was a coincidence evidence case. The judgment of the court was written by Spigelman CJ. His Honour held at par94 et seq that the expression in s101(2) "substantially outweighs" means that the test of "no other rational explanation other than guilt" propounded by the majority in R v Pfennig [1995] HCA 7; (1995) 182 CLR 461 for the admission of tendency evidence must be rejected, and the minority view expounded by McHugh J in that case adopted. Spigelman CJ said, at pars95 and 96:

"95 Section 101(2) calls for a balancing exercise which can only be conducted on the facts of each case. It requires the Court to make a judgment, rather than to exercise a discretion. (See R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 at [20] per Sheller JA; F Bennion 'Distinguishing Judgment and Discretion' [2000] Public Law 368.) The 'no rational explanation' test focuses on one only of the two matters to be balanced - by requiring a high test of probative value - thereby averting any balancing process. I am unable to construe s101(2) to that effect.

96 My conclusion in relation to the construction of s101(2) should not be understood to suggest that the stringency of the approach, culminating in the Pfennig test, is never appropriate when the judgment for which the section calls has to be made. There may well be cases where, on the facts, it would not be open to conclude that the probative value of particular evidence substantially outweighs its prejudicial effect, unless the 'no rational explanation' test were satisfied."

7 In R v Mason (2003) 140 A Crim R 274 the Court of Appeal (New South Wales) constituted by Tobias, Howie and Shaw JJ followed R v Ellis. What then is said to be the prejudice that the probative value of the evidence of each complainant in this case must outweigh? Mr Avery contended that it is the possibility of concoction. This gives rise to the issue of the applicability of the principles laid down by the High Court in R v Hoch (supra) to the Act, s101(2).

8 Although the focus in Hoch was on the potential untruthfulness of the impugned evidence, and although it is far from settled whether that is a relevant consideration having regard to the definitions of "probative value" in the Act, s3, and "relevant evidence" in s55(1), I am of the view that potential untruthfulness of tendency evidence is a relevant consideration when considering the probative force of evidence sought to be adduced pursuant to the Act, ss97(1) and 98(1). The applicability of the principle in Hoch to the Act, ss97(1), 98(1) and 101(2), was considered in some detail by Mason P in R v Colby [1999] NSWCCA 261. He said, at par107:

"Subject to this possible qualification, the procedural approach adopted in Hoch should be applied to trials conducted in accordance with the Evidence Act 1995 where evidence is admitted to show tendency (cf s97) or to rebut coincidence (cf s98). If the reasonable possibility of concoction suggests that evidence of this nature may be contaminated, it must be withheld from the jury because that risk deprives the evidence of its significant probative value, regardless of its substantial and relevant similarity."

9 A little further on, his Honour directed himself that the relevant test was whether there was a reasonable possibility, not a speculative or conjectural possibility, of joint concoction. The other members of the court agreed with the reasons for judgment of the learned president.

10 In the later case of R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433, Mason P agreed with the reasons for judgment of Simpson J. At par50, her Honour expressly stated that Hoch "can no longer be regarded as a comprehensive statement of the law of the admissibility of similar fact evidence in criminal cases in New South Wales". Her Honour correctly observed that the common law has been "overtaken" by the Evidence Act. See Papakosmas v R (1999) 1976 CLR 297 at par10. Simpson J discussed R v Colby (supra) at par77 and held that if the "Crown fails to exclude the reasonable possibility of concoction on the part of the proposed witness or witnesses, the evidence must be excluded". Her Honour reasoned, correctly in my respectful view, such requirement for exclusion arose from the expression "probative value of the evidence substantially outweighs any prejudicial effect" in the Act, s101(2) (and similar expressions in ss135 and 137) and not because of any general statement in Hoch. The other member of the court, Dowd J, also agreed with Simpson J's reasons for judgment.

11 Although Colby and OGD were decided before Ellis, it seems to me that the proper exercise of the balancing act that is demanded by the Act, s101(2) requires that evidence of possibility of concoction be taken into account, and if there is a reasonable possibility of concoction, then the prejudicial effect will ordinarily outweigh the probative value of the tendency or coincidence evidence.

12 Concoction includes not only cases where the complainants have possibly got together to concoct an account, but also those cases where one complainant has possibly concocted her evidence after becoming aware of the account of another complainant. See BRS v R [1997] HCA 47; (1997) 191 CLR 275 at 301; P v R [2002] TASSC 61. In Hickey v R (2002) 136 A Crim R 151, the Full Court of the Supreme Court of Western Australia, at 155, approved an earlier statement of the Court that the possibility of concoction must be understood "... as a reasonable possibility, based upon some factual foundation and not merely a fanciful possibility". A little further on at 155, Templeman J referred to the earlier case (Hamilton) and said:

"The decision in Hamilton demonstrates that the mere fact that complainants know each other and have discussed the alleged offences, does not of itself render their evidence inadmissible if there is no other factual foundation upon which a reasonable possibility of concoction may be based."

13 In R v Robertson (1997) 91 A Crim R 388, Ambrose J said at 409:

"In the majority judgment in Hoch at p297 it is observed that in some cases a judge who must rule upon admissibility of similar fact evidence might require an examination on voire dire to ascertain:

'the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction.'

To my mind this language implies that the trial judge may use the same sort of commonsense and experience in determining that question as used in the practice reflected in Ananthanarayanan and Ryder. Stated shortly it is necessary for the trial judge to determine whether there is a real chance of concoction or contamination rather than a merely speculative chance. Similar facts could not be reasonably explained on the basis of concoction unless there was a real chance of it. To determine whether there is a real chance the trial judge must look at the facts of the case before him and determine what were the circumstances of the witnesses sought to be called to give similar fact evidence. Undoubtedly where such witnesses are in close relationship and there is both an opportunity and motivation to concoct and they give evidence of the same sorts of sexual behaviour on the part of an accused person, the determination of admissibility on the facts in Hoch and Youngson will perhaps be a compelling indication of the determination required."

14 I direct myself in accordance with the foregoing.

15 With respect to the commission of the crime charged on the first count, complainant A gave evidence that on many occasions at Lauderdale and at Hamilton the accused came into her bedroom at night when she was in bed. She said that he habitually crawled under her blankets from the bottom of her bed, pulled down her pants and licked her vagina. She said that she could feel his "whiskers." There was evidence that at all material times the accused had a moustache. She said that he persisted in this conduct from the time she was 5 or 6 years old until she was about 15. She said that she tried to resist him by pushing him away and kicking out but to no avail. A said that once when she was in the bath the accused put his fingers in her vagina and that once he touched her on the vagina when she was in the shower. A said that she left home when she was about 16 years old.

16 The evidence established that at some stage after A left home, the accused, his wife and their son went to live at Mornington. After the accused and his family took up residence in Mornington, complainant B, her mother, her father, her elder sister and I think, her brother, moved into a house just two doors away from the accused and his family. About two years after B and her family moved into the house next door to the accused, a Mrs R and her daughter, E, moved into the house between the accused and B. It appears that all three families became friends and complainant B and E, who were about the same age, became "best friends" and spent a lot of time in each other's company.

17 The evidence as to when the various events occurred was far from clear, but A said that when she was about 21 years old, she was involved in a car accident and following her discharge from hospital, she went to stay with the accused, his wife and their son, Andrew, for a brief period as she had no where else to go to recuperate. It was then that she met complainant B, who was probably only about 3 or 4 years old at that time, her mother, Mrs R and her daughter, E. They all became friends. Although, as I say, the evidence is far from clear, I gather that although A did not stay with the accused for very long, she remained friendly with B's mother and Mrs R for some years and she visited both of them from time to time. When complainant B gave evidence she spoke of A being at the accused's house for family events and the like.

18 Mrs R said that A told her that the accused had sexually abused her. She said that she was told this by A when the latter was about 23 years old and Mrs R's daughter was about 4 or 5 years old. It is significant to note that when A made this disclosure to Mrs R no suggestion had been made by anybody that the accused had been sexually assaulting B.

19 With respect to the alleged sexual abuse of B, A said that the first she heard of it was she was at Mrs R's house one day and her daughter E walked in and said that the accused was licking B. A said that she said to Mrs R, "that's what he used to do to me, it's true [Mrs R]". A said in her evidence that after she heard this from B's best friend, E, she went to B's mother and repeated what she had learnt. A said that she told B's mother that the accused had done the same thing to her and she would not forgive her if she let it continue. A's evidence was to the effect that at that stage the accused's son arrived at B's house and she left. A strenuously denied that on the occasion she made this disclosure to B's mother she told her anything about the manner in which the crime was committed upon her other than that the accused had sexually abused her. She also strenuously denied that at that time she spoke to B about the sexual abuse that she had suffered.

20 It is necessary to interpolate here that at some stage a relationship developed between the accused's son and B's mother and that they eventually married and had a child. However they subsequently separated.

21 E, B's former best friend, is now a 19 year-old university student. She said that she was unable to recall B telling her anything about the accused sexually abusing her, nor can she recall her telling her mother, Mrs R, that that had occurred. However, it is crystal clear from the evidence of Mrs R and B's mother, that E did tell her mother that B had in turn told her that the accused had been touching and licking her. Both B's mother and Mrs R gave evidence about this traumatic disclosure. Mrs R, who appeared to be a careful witness, said the disclosure was made in about 1992 when her daughter E, was about 7 years old. She said that her daughter told her that B had told her that when she [B] went to visit Poppy he used to come into her bedroom at night, pull down her pants and lick her private parts.

22 Mrs R's evidence is at odds with A's evidence for she said that she was certain that A was not present when her daughter made this disclosure. She said that she told A about it the next day and that when she did, A said "it's true because that's exactly what he did to me".

23 Mrs R's evidence was that soon after her daughter had made the disclosure, she went to B's house and told B's mother what her daughter had told her. She said that the accused's son was present at the time, but all he said was that "if this is about my father, I don't want to know". Mrs R said that she has never discussed the matter with B, nor did she raise it again with her daughter.

24 In her evidence, B's mother confirmed Mrs R's evidence that the latter did tell her what her daughter, E, had told her. She said that by this stage she and the accused's son had been in a relationship for some time and in result, B and her elder sister, used to stay overnight with the accused and his wife, first at their house in Mornington and later at the house they moved to in Bothwell. B's mother confirmed that the accused's son was in the house when Mrs R came over and made the disclosure. Her description of his reaction differed from that described by Mrs R. B's mother said that the accused's son was furious and called B a liar. She said that later that day, the accused and his wife visited them and the accused's son made B apologise to the accused and was then sent to her room as punishment. B's mother said that her daughter was distressed and she went to comfort her. Her evidence was that she learned nothing from her daughter about the nature or frequency of the accused's criminal conduct. She said that B just repeated that she was not lying and that "he touched me".

25 B's mother gave evidence that the morning after Mrs R made the disclosure, complainant A came to her house. Consistently with Mrs R's evidence that she told A the day after her daughter had told her of the alleged criminal conduct, B's mother said that A was very upset when she arrived and it was obvious to her that A had just heard about the allegation. She said that A told her that the accused used to do it to her for years but A provided no detail to her of what it was the accused did other than it was oral sex. Although it makes little difference I prefer the evidence of Mrs R and B's mother to that given by A and find that A was not present when E told her mother what B said the accused had done. The evidence of each is corroborated by the other.

26 B gave evidence that she was sexually assaulted by the accused on many occasions. She described how she and her sister stayed with the accused and his wife at their house in Mornington and later at their house in Bothwell. She described the accused coming to her bed when she was pretending to be asleep and pulling back the blankets. She said that he touched her on her vagina with his fingers. She said that he often licked her vagina and she could feel his moustache. She said that on some occasions he took her hand and placed it on his penis. She continued to pretend to be asleep while these events occurred.

27 B said that she can recall that when she was about 7 or 8 years old, she and E were at the airport. She said that she told E that she did not want to go and stay with the accused that weekend because "he touched her down there and licked her down there." She said that he had done that about a couple of weeks before they were at the airport, and he continued to do it after she made the complaint to E. B said that that night E's mother came over and spoke to her mother. She said that her mother called her into her room and asked her what she had said to E. She repeated that she had been touched down there but the accused's son called her a liar. She confirmed that she gave her mother no details of the attacks.

28 It is fair to say that at this stage it is likely that A knew that B had alleged that the accused had fingered and licked her vagina but no other details of the alleged assaults. B was then completely unaware of A's complaint. Mr Avery did not submit that the evidence to this stage supported any finding of possible concoction. It appears that after the day of disclosure, there was no more contact between A and Mrs R, nor between A and Mrs R's daughter. Further, after disclosure, there was no more contact between A and B's mother or B until about 2000, some six or seven years later.

29 B's mother severed her relationship with the accused's son in 1994, the day after their daughter's second birthday and on 31 December 1996, she and her children moved to Melbourne. B was then aged about 11. Her mother married her present husband in Melbourne. It was B's evidence that she did not discuss the matter with her mother although she learned from her at some stage that A alleged that the accused had assaulted her when she was a child. However, she learnt nothing of the detail of the allegation.

30 B's mother told her husband about the allegations. There were discussions between them about providing B with some counselling. B's mother said that because her husband did not understand B, and because she thought it might help if he met A, in 2000, the whole family, including B who was then 16 years old, returned to Tasmania. A had married and was living with her husband and children. She had moved her address but B's mother managed to find her. A gave evidence of this visit in 2000, but again her evidence was at variance with that given by B and her mother. I prefer that given by the latter two as one corroborated the other, although the difference between their evidence and that given by A makes little, if any, difference to the outcome of this ruling. A said in her evidence that B's mother, her present husband and her children, including B, unexpectedly turned up at her house. She said that there was a conversation, during the course of which the question of sexual abuse came up. She said that she confirmed to B's mother's husband that she had been abused as a child, but she gave no details as to the manner of this abuse. She said that the children were present and it was not appropriate to do so.

31 B's mother said that the adults were alone in the kitchen having a conversation while the children played outside. She said she was "absolutely certain about this". She said that A said to her and her husband that she had been molested by the accused, and she confirmed A's evidence that she did not provide any detail as to the manner of the sexual abuse. There was some discussion about counselling and how it had been beneficial for A. There was also discussion about whether A would report the matter to the police. A denied that there was any such discussion. However, according to B's mother, she said that if A did go to the police, she was certain that her daughter, B, would stand with her. The conversation ended on the basis of A saying that she would think about that. B's evidence was the same as that given by her mother. She said that she was told to go outside with the children as it was an adult discussion and that she never learnt of the content of that discussion. B said that she had spoken to her mother about her going to the police. She raised it with her mother after watching a film on television, I infer, about child abuse, and there was some discussion that she might consider going to the police. It was B's evidence that to this day she is unaware of the detail of the allegations that A made when she went to the police and made a statement.

32 B's mother said that over the six or seven years preceding the visit to A's house in 2000 there were some discussions between her and her daughter about the sexual abuse, but she never really got any detail from B other than that the accused touched her on the vagina and licked her vagina.

33 Mr Avery submitted that the two complainants were not strangers to each other. That is true. A was an adopted daughter of the accused and B might have been regarded at one stage as the step-daughter of the accused's son. Because of this family connection B called A "aunty A". However, it is clear that there was a great difference in the ages of the two complainants and the contact between them after the disclosure when B was about 7 or 8 years old was very limited. On any version of the events, there is no evidence that either were aware of the details of the alleged assault on the other, other than that it involved touching and licking the vagina. Further, A made complaint about the assault on her as a child before any complaint was raised by B. A's instantaneous reaction upon learning that B had complained to A that she was being assaulted was inconsistent with concoction on her part. There was nothing in the evidence to suggest animosity towards the accused by either complainant other than that caused by the alleged assaults. This is a case where each complainant learnt of the other's complaint but not the detailed circumstances surrounding the commission of the crimes. No possibility of concoction arises from that principally because each made complaint before either knew of the other's complaint. Subsequent opportunities for them to get together have been very limited as they lived, and continue to live, in different States. Mr Avery submitted that it was reasonably possible that A was bolstered in her resolve to go to the police by her knowledge that B had a complaint against the same man. The submission does not accord with the evidence for A went first to the Ombudsman because she heard that the Ombudsman was conducting an enquiry into sexual abuse and foster children. As a result of that contact, the Ombudsman put A in touch with the police and she made a statement. She told the police about B's complaint but at that time she said she had not spoken to B or her mother about B going to the police. She did not then know B's mother's phone number. This is a case in which the evidence merely establishes that the two complainants knew each other and became aware of the outline of the complaint of the other with respect to the accused. Each made a complaint before they were aware of the other complaint. The alleged facts of each complaint are widely separated in time and place. There is no rational factual foundation for the possibility of concoction either in the form of fabrication or unconscious tainting.

34 For the foregoing reasons I ruled that the evidence of each complainant was admissible upon both counts on the indictment.

35 Because of E's evidence that she was not able to recall complainant B telling her when they were both aged about 7 years old that the accused touched and licked her vagina, nor telling her mother that was what B had told her, the Crown sought leave to cross-examine B pursuant to the Act, s38. Mr Avery neither opposed nor consented to the application. I allowed it and these are an edited version of my reasons for doing so.

First, the evidence on the voir dire from the complainant and Mrs R satisfies me that the complaint was made by B to E and shortly afterwards related by the latter to her mother, Mrs R.

Second, I conclude that E simply has no memory of those events now, although she obviously had a memory of them in 1992.

Third, had E had a memory of B making a complaint to her, her evidence to that effect (like the complainant's evidence) would have been admissible as evidence of the truth of the content of the complaint because the statutory requirements of the Act, s66 are made out. E is a witness who heard B make a representation and that representation was made when the events to which it related were fresh in B's memory. I find that the sexual acts referred to in the complaint made by B had been going on for a considerable period with a regularity in the order of about once every two weeks and that these acts continued after the complaint was made. I find that the period of time that elapsed between the making of the complaint and the immediately prior sexual assault was not longer than about two weeks. Having regard to the nature of the acts and their continuing nature, I find that that period satisfies the requirements of "fresh in the mind of the person who made the representation".

36 I find that E's inability to recall the complaint and her repetition of it to her mother is due to loss of memory and not unwillingness to give evidence. I find that her evidence to that effect is unfavourable to the Crown. In this respect, I rely upon the authorities that I set out in my decision R v Ashton and Ors [2003] TASSC 140 at pars17 - 25.

37 I also find that the evidence of E that she has no recall of the complaint being made nor of her repeating the complaint to her mother is inconsistent with her prior statement to her mother that the complaint was made. I confess that I first entertained doubts about this proposition but have been persuaded by the reasoning of the Court of Criminal Appeal (Vic) in Houston and Anor v R (1982) 8 A Crim R 392 at 397 and 400.

38 With respect to the Crown's application for leave to cross-examine E about this matter I conclude that it is entitled to so because of the provisions of the Act, s38(1)(a) and (c). In considering the application I have regard to the provisions of the Act, s192, and in particular the matters referred to in subs(2).

39 Leave is granted for the Crown to cross examine the witness E about the statement she made to her mother in 1992 that the complainant told her that the accused was touching her vagina and licking her. If, in cross-examination she does not admit that she made the statement to her mother, and if the prerequisites of the Act, s43(2), are satisfied, the Crown is entitled to adduce evidence from Mrs R that E did make the statement to her in 1992.

40 The provisions of the Act, s60, will apply to Mrs R's evidence to that effect, making it evidence of the truth of the statement by E.