Van Gestel v R [2023] NSWCCA 263 | Case summary

Ground 1

The first proposed ground was at the forefront of the parties' written and oral submissions. In large measure it turned on a hearing prior to the jury being empanelled, at which counsel then appearing for the applicant objected to a great deal of the evidence anticipated in the Crown brief. This was evidence of complaint by each of the complainants, and in each case the complaints had been made many years after the event. The details do not greatly matter for the purposes of resolving this appeal. Its flavour is sufficiently summarised by noting that it included evidence from each of Amanda, Bertha and Caroline that, many years after, they had disclosed to friends, a psychologist, Amanda's husband and Caroline's partner that they had been indecently assaulted as young girls. Seven witnesses to whom those complaints were made were proposed to be called in the Crown case. Thus for example the psychologist was to say that she met Amanda in November 2017, some 43 years after the purported conduct. Amanda's husband and a female friend were to give evidence that he and she had been told of the accusations in 2017 or 2018, some four decades after the event. Two school friends of Bertha were to say that Bertha told them she had been sexually assaulted at a dinner which was difficult to place in time, but was some 10 to 16 years after the alleged conduct. Caroline's partner was also to say that in 2017, she had confided in him.
The debate that ensued, and upon which the first proposed ground of appeal is based, turned on the operation of ss 66 and 108 of the Evidence Act 1995 (NSW). Those provisions relevantly provided as follows: 66 Exception: criminal proceedings if maker available (1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by - (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. (2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including - (a) the nature of the event concerned, and (b) the age and health of the person, and (c) the period of time between the occurrence of the asserted fact and the making of the representation. Note - Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606. … 108 Exception: re-establishing credibility (1) The credibility rule does not apply to evidence adduced in re-examination of a witness. … (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if - (a) evidence of a prior inconsistent statement of the witness has been admitted, or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion, and the court gives leave to adduce the evidence of the prior consistent statement.
As is noted in the section, s 66(2A) was inserted following the High Court's decision in Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61. The effect was to expand the meaning to be given to the requirement that evidence be "fresh in the memory" of the person making the representation.
The statements of each complaint witness were provided to the trial judge, together with written submissions prepared by the applicant's counsel. Those submissions objected to the entirety of that evidence on the basis that they could not be admissible pursuant to s 66 because they were inadmissible hearsay of facts which could by no account, decades after the event, have been "fresh in the memory" of Amanda, Bertha or Caroline within the meaning of s 66(2)(b). Section 108 was not mentioned.
The primary judge received all of those materials and took the short adjournment. When the hearing resumed, there was the following exchange which was central to the first proposed ground of appeal and must be reproduced in full, notwithstanding its length: HER HONOUR: Returning to the trial matter of Van Gestel. Mr Schaudin, I appreciate that you take issue with the length of time between the alleged offences and what's said to constitute complaint, and some of the complaint evidence, if I could broadly characterise it that way, that is contained within the Crown's statements, might be said to fall short of the specificity that one would expect. But leaving to one side the freshest in the memory argument, because it isn't just a question of just the length of time, it's the nature of the offences, the ages of the complainants, the circumstances in which those alleged events occurred, the fact that the accused moved to Melbourne, that there was obviously a period of time when the complainants individually struggled with what had occurred, not just the fact that it had, but understanding the nature of what had occurred over a very long period of time. Put all that to one side. That's all in the mix. But if, as I anticipate, you must cross-examine each of the complainants on the basis that they have fabricated these allegations, then there are some statements quite clearly that would come in under s 108 subs 3 of the Evidence Act by way of restoring the credibility of the complainants, and then the question arises whether or not it's simply limited in terms of the use that the jury might make of it to that issue, namely their credibility or whether it's used more broadly under s 60, and that's a decision that would have to be made at the point in time at which I give the jury directions in summing-up. But it seems to me that this argument might be premature, and I say that because I don't know what the complainants individually are going to say about who they told and what they said, and until they give that evidence then, there's no underpinning for the complaint evidence to come in, and added to that, your cross-examination will no doubt effect the basis upon which and the extent to which it does come in. So, I'm minded to say at this point in time that I think the trial should proceed with the evidence of the complainants, and it may be that at some point when we know how the complainants have been challenged, in what respect they've been challenged, it may be then that the evidence of these prospective complaint witnesses should be looked at afresh. It might even mean that they, or at least some of them, give evidence on the voir dire, because for my part, the statements are pretty devoid of relevant detail. I don't know what they're going to say. They might go further than what's in their statement, that might provide fresh grounds for cross-examination, but I think that insofar as the Crown seeks to admit this evidence as complaint, they've clearly got problems with respect to some of them, but it may be that that evidence comes in anyway under s 108. But, as I've just said, I think that that's perhaps a premature debate. So, at the moment I think we should proceed on the basis that at least some of these witnesses will be permitted to give evidence in some form, but at this stage I am just not quite sure what that might be. But I don't think it prejudices you in any way in terms of how you approach the evidence of the complainants. So, are you content to leave it on that basis? SCHAUDIN: I am, I just don't know how my friend would propose to open if that affects what he was proposing to do. HER HONOUR: Well, he might just have to not open on the complaints. I don't think that matters. SCHAUDIN: The direct answer to your Honour's question is no. HER HONOUR: Right. Is that understood, Mr Crown? CROWN PROSECUTOR: It is, your Honour. HER HONOUR: Now, is there anything else I need to canvas before we proceed any further? SCHAUDIN: Not from my point of view.
The parties were diametrically opposed as to the effect of that passage. Mr Stratton SC, who appeared for the applicant in this Court, but not at trial, maintained that it amounted to a ruling that the complaint evidence was admissible. He submitted that thereafter counsel acquiesced in that ruling, as a result of which no objections were made subsequently to any of the complaint evidence.
In support of this ground, counsel who had appeared at trial for the applicant made an affidavit. His affidavit was read and he was not required for cross-examination, expressly on the basis that it was not necessary to confront him with the proposition that his recollection was incorrect. The affidavit included the following evidence: In relation to pages 11-12 of the transcript, I say as follows. When her Honour asked me, "so are you content to leave it on that basis?", I understood her Honour to have ruled that the evidence of complaint was admissible.
I do not accept Mr Stratton's characterisation of what occurred, and I am convinced that counsel's recollection is erroneous. My reasons for that are as follows.
The starting point is the ordinary meaning of the words her Honour used. Her Honour explicitly did not address s 66, while acknowledging that the submission might have some merit, on the basis of her assumption that "if, as I anticipate, you must cross-examine each of the complainants on the basis that they have fabricated these allegations" then at least some parts would be admissible under s 108(3). Her Honour's statements thereafter address s 108(3) and emphasise the prematurity of a ruling at this point. All of this is antithetical to a ruling having been made under s 66.
Secondly, her Honour was saying that it would be necessary, when the evidence of the complainant was known and how it was they were to be challenged, for the evidence of the complaints to be looked at afresh. The debate took place in light of the statements of what the various witnesses were anticipated to say, but their evidence had not been given. Her Honour's statement that "[i]t might even mean that they, or at least some of them, give evidence on the voir dire, because for my part, the statements are pretty devoid of relevant detail" is inconsistent with there having been a ruling that any evidence had been admitted. It is also inconsistent with a ruling in point of principle that evidence of the nature foreshadowed in the statements which had been served would if adduced be admissible pursuant to s 66.
Thirdly, her Honour went on and confirmed, lest there be any misunderstanding, "as I've just said, I think that that's perhaps a premature debate". Counsel responded to all of this saying that he was content to leave it on that basis. He raised a separate point, namely, how was the case to be opened by the Crown and would the Crown include the complaints in its opening.
There is plainly some slight defect in the transcript that follows but it is clear enough that counsel opposed the Crown opening on the complaint evidence, in response to which her Honour asked if that was understood by the Crown, who confirmed that it was.
Fourthly, when the Crown opened the case two days later, the opening did not extend to the complaint evidence. That is consistent with her Honour not having ruled the evidence admissible under s 66. It is inconsistent with the applicant's submission that her Honour had in fact ruled it admissible. When this was raised with the applicant's counsel, there was the following exchange: WILSON J: So if it is in, why would the Crown not have opened? STRATTON: Well, can I pose this question to your Honour? If that was the basis upon which it was led, how was it the Crown thought he was able to lead that evidence-in-chief from the first witness?
The response falls short of explaining why the Crown did not open on the complaint evidence. That is not a criticism of counsel, for it is difficult to see what answer there could be. If as the applicant submitted the complaint evidence had been ruled admissible, why ever would the Crown not in its opening tell the jury that they would be hearing from no fewer than seven witnesses to each of whom the three complainants had said that the applicant had molested them. I shall return to the rhetorical question posed in response after summarising what occurred.
When evidence in chief was adduced from the first complainant, immediately after evidence was given of each of the first five counts on the indictment, there followed this evidence: Q. Did you at all play with [the applicant's daughter] after that, after you turned eight? A. I would only play with her if she was out in the cul-de-sac. Q. Now, did you tell your parents at all when you were young about what happened? A. No. Q. Did you speak to a psychologist in about August of 2017? A. I did. Q. Who was the psychologist? A. Elise Lowick. Q. What did you say to Elise Lowick? A. I was having flashbacks about these incidents, and I wasn't able to sleep and I was very depressed and had anxiety, and I knew I needed to-- SCHAUDIN: I object. The question is what did she say? HER HONOUR: Well, I think she's leading up to that. Q. Anyway, you recognised you needed to speak to somebody? A. I needed to speak to somebody about this. Q. So what did you actually say to Ms Lowick when you reached this topic? A. I told her that I had been raped when I was younger and molested by a neighbour.
There was no objection to the complainant giving evidence of what she said more than 40 years after the events giving rise to the first five counts on the indictment. It is inconceivable that counsel for the accused was not observing this development, which went beyond the case as opened, and indeed the fact that counsel was attentive to the evidence as it was being led is confirmed by the fact that he objected when an answer was given which was defective in form. But no objection was made to the fact that the jury was hearing evidence which was the subject of the debate two days earlier.
The applicant invited this Court to conclude that that took place because there was no point in counsel objecting, her Honour already having ruled on the point. The applicant went further and contended that if indeed the evidence had not been the subject of a ruling, it would have been improper of the Crown to have adduced the complaint evidence in chief, in the absence of leave being granted under s 108(3).
I do not accept that that is what occurred. Instead, counsel must have been conscious of the fact that consistently with his client's instructions, he needed to attack the complainant's recollection. It may have been perceived that it was in his favour to have evidence that no complaint had been made for more than 40 years. He may have also realised that any attack would necessarily involve this evidence coming out, either in cross-examination or in permitted re-examination. It is extremely implausible that counsel had forgotten everything that had been said a few days earlier in advance of the trial about the possibility of a voir dire when the point was no longer premature. It seems overwhelmingly more likely that there had been some communication between the Crown and defence about adducing evidence of the complaints in chief, and that there was no opposition to that course because (a) the defence accepted that Amanda would have to be cross-examined as her Honour had anticipated on the basis that her recollection had been fabricated and (b) it was in fact advantageous to the defence for the complaint evidence to come out in chief, after which cross-examination could occur, rather than it being adduced in re-examination.
There was no need to obtain leave to adduce evidence which had been served in the Crown case and to which no objection was made by the defence. Many of the authorities are reviewed in Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 at [261]-[273]. As Gleeson JA said with the agreement of Macfarlan and Brereton JJA, the "prevailing view in this State" is that the hearsay rule only applies to evidence to which objection is taken: Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 328; 396 ALR 545 at [74].
Fifthly, if there were any doubt about it, prior to the trial and shortly after the lengthy passage reproduced above, immediately before the end of the pre-trial hearing, there was the following exchange: HER HONOUR: All right. I'll hand down this indictment and I'll hand it back to you, Mr Crown, so that you can hand up a fresh indictment on Thursday morning, and can I indicate, Mr Schaudin, your application to have the evidence excluded has not been dismissed or dealt with to finality, it may be revisited in that form or another form at some point later in the trial. SCHAUDIN: I understand.
It should be noted for completeness that Mr Schaudin's affidavit did not express any view as to that passage of the transcript. The Court raised this point with Mr Stratton before the luncheon adjournment. If the otherwise irresistible inference that counsel's recollection as stated in his affidavit was mistaken, perhaps because he had not been taken to that passage in the transcript, it could have been corrected. No attempt was made to do so.
When the Court resumed after the luncheon adjournment, Mr Stratton submitted: STRATTON: … We submit that is exactly what you would expect her Honour to say if her Honour had made a ruling on evidence. Because this Court has said many times in the context of s 5F applications, that the reason this Court will not entertain a 5F appeal from a ruling on evidence, is that it is never final and can be revisited at any time. WILSON J: Do you think that was just her Honour getting in ahead effectively and cutting off this Court's jurisdiction? STRATTON: No, I think her Honour was saying what exactly reflects the nature of what she had said to the parties, which was a ruling on evidence.
I do not accept counsel's characterisation of what was said. The passage falls to be read in light of her Honour's repeated statement that "this argument might be premature" and "it may be that at some point when we know how the complainants have been challenged … it may be then that the evidence of these prospective complaint witnesses should be looked at afresh" and "it may be that that evidence comes in anyway under s 108". The only meaning which her Honour's subsequent statement could convey is that the applicant's objection under s 66, and the issue of it being moot having regard to s 108, had not been ruled upon.
Finally it must also be borne in mind that, at the time the exchange reproduced above took place, there had been no argument whatsoever concerning s 108(3) of the Evidence Act. It was her Honour who introduced the practical reality of the situation that even if the complaint evidence were not admissible under s 66, at least some of it would be admissible under s 108(3) "if, as I anticipate, you must cross-examine each of the complainants on the basis that they have fabricated these allegations". A great deal of what follows thereafter concerns the hypotheticality of the dispute, which is unsurprising because much of the complaint evidence was vaguely expressed and inconsistent in terms of time and places. Her Honour was conscious that it was premature to rule at this stage. That is why her Honour said "it seems to me that this argument might be premature".
By way of confirmation of the above, on the third day of the trial, after the evidence of all three complainants had been completed, there was the following exchange: HER HONOUR: Because the other thing I was going to raise before Mr Schaudin raised that point was that I noticed that there was no objection given to the witnesses thus far talking about who they told. And in some respects, that does foreshadow that those people are going to give evidence. And as I said, I haven't really got a concluded view about it. CROWN PROSECUTOR: Yes. HER HONOUR: But my present inclination would be to allow the evidence of complaint such as it is, and I don't know what it is, but to allow it to come in by way of s 108, and to limit the evidence as evidence that goes to the credibility of the complainant, but not as to the truth of the assertions that they've made.
Counsel then appearing for the applicant did not at that point say that he had been conducting the case on a different basis, namely, that her Honour had ruled that the complaint evidence was admissible.
Suppose objection had been taken to the evidence of Amanda's conversation with her psychologist more than 40 years later. Subject to the submissions to be made below, it would have been plainly open to the primary judge to proceed on the basis that counsel for the defence was intending to put to the witness that her recollection was fabricated or reconstructed or was the result of suggestion within the meaning of s 108(3)(b). That was because her Honour had explicitly laid this out two days before as something which her Honour had perceived would inevitably happen, something with which counsel did not cavil. And indeed, that is exactly what happened.
I mention the foregoing because Mr Stratton pointed to the decision of the Victorian Court of Appeal in Clay (a Pseudonym) v The Queen (2014) 43 VR 405; [2014] VSCA 269 at [50] and [51]: While it is true that the 'nature of the event' concerned is a relevant factor in determining whether to permit evidence of previous complaint to be led, so too, in terms, is 'the period of time between the occurrence of the asserted fact and the making of the representation'. Wherever the line is to be drawn, a period that, in the case of at least two of the complainants, exceeded 20 years seems to us to have been so far beyond what the legislature could ever have contemplated when it enacted s 66(2A) as to make it impossible to say that the requirements of the section were met. In this case, absent any evidence to suggest that these matters were relevantly 'fresh in the memory' of the individual complainant concerned, the hearsay rule was applicable. Evidence of each of the complaints should, accordingly, have been excluded. Of course, it would have assisted had counsel for the appellant sought the exclusion of this evidence, instead of standing by, passively, while it was led. Even so, and assuming that counsel saw some forensic advantage in bringing out the fact that no complaint had been made for such an inordinately lengthy period, one might have expected the trial judge herself to have raised the question whether this evidence should be received. Had she done so, trial counsel may have been alerted to the fact that there was a real problem with the admissibility of this evidence, and objected to it. [footnote omitted.]
I do not think this is a case where her Honour was obliged to intervene in relation to evidence of complaint which was adduced without objection. The applicant was represented by counsel. The primary judge knew that counsel was alert to the limitations of s 66, and knew that the Crown had not opened on evidence of complaint, and had foreshadowed the possibility of a voir dire on that evidence when the trial got to that stage. Contrary to the applicant's submission, the position was as Wilson J explained during the hearing, namely, that "it would have been open to her Honour, sitting on the bench listening to that evidence come out, to think counsel have obviously discussed it and they agreed it could go in under 108 and, therefore, that is why it is going in". Mr Stratton said, correctly, that there was no evidence of that, but it is also true that the affidavit from counsel who defended the applicant at trial is silent on the point.
Insofar as the applicant's submissions maintained that there was a proposition of law identified in Clay v The Queen which this Court should follow unless convinced it were clearly wrong, I cannot agree. Whether a trial judge should intervene to ensure a fair trial is quintessentially a factual matter. Although as in Clay a complainant was giving evidence of complaints made by her decades after the event without objection, in the present case that was occurring after submissions had been received from defence counsel and there had been the pre-trial exchange.
The applicant submitted that it had not been put to each of the complainants that they had "fabricated" or "re-constructed" their evidence or that it was the "result of a suggestion" for the purposes of s 108. On one view this goes beyond the scope of ground 1, but in any event it was refuted at length in the Crown's written and oral submissions. It is not necessary to summarise all of the references. They included that Bertha had been "prompted" by a detective to enable her to recall that a door had been closed 30 years ago, and when Amanda was cross-examined by part of her evidence which did not appear in a police statement, she agreed that it was an "example of her memory improving".
Bertha was cross-examined as follows: Q. When you say you were pushed by Detective Mason, what do you mean? A. She would say, "Could you be specific? Do you remember how long something lasted", as an example. And then I would say "Yes, one to two seconds", and then it's made its way into the statement. Or she would say, "Was there anyone else at home at that time that you remember?" And I would - obviously, it would be reflected in the statement. I think "prompted" might be a better word. Q. That prompting enabled you to recall, you closed a door 30 years ago. Is that right? A. I don't believe the prompting made me recall that. I have a very - very vivid memory of that event because it was significant to me. And I do remember cause I felt uncomfortable around Mr Van Gestel. Q. The vividness of that memory didn't make its way into the four-page document. You've agreed with that, haven't you? A. Yes, sir, I do.
The applicant also submitted that the evidence of complaint was so many years after the events, and of such a vague nature, that it did precious little to assist in assessing the credibility of the complainants. He relied upon what had been said in Graham v The Queen at [9]: How does the making of a complaint six years after the events bear upon that question? Unless the making of the complaint can be said to assist the resolution of that question, the evidence of complaint is not important and would do nothing except add to the length of the hearing. And in this case, it is by no means clear that the making of a complaint six years after the event does assist in deciding whether the complainant had fabricated her evidence. Although trial counsel for the appellant suggested to the complainant, by his last question in cross-examination, that she was "making it all up" the allegation of fabrication of evidence did not loom large in the trial. No question was put, and no answer was given, from which the time of alleged fabrication could be identified. The complaint having been made in 1994, and it having led at once to the start of police investigations, it may be doubted that a jury could gain assistance from its making in deciding whether the complainant had fabricated her story. [footnotes omitted].
The relevance of evidence turned upon the particular factual issues at trial. Here, for example, it was submitted that some of Bertha's evidence was the result of prompting or pressuring by police. To that extent, the fact that there was evidence that years before, she had told her friends that she had been sexually assaulted, was relevant to resist the conclusion that her evidence was the product of prompting or pressuring. To that end, the primary judge gave clear directions that the jury was to use the complaint evidence only as to whether it supported or detracted from the credibility of the complainants. Her Honour unambiguously directed that "you cannot use it as evidence that the assaults occurred". No challenge was made in this Court to the appropriateness of those directions.
The applicant's submissions concluded with the proposition that if the evidence of complaint in the present case, decades after the event, could be relied upon under s 108(3)(b), then there would be no utility in the requirement in s 66 that evidence be fresh because it would always be admissible under s 108. As it was put in oral address "it boils down to saying if there is a dispute about whether or not someone is guilty, then the Crown contention is, in effect, that section 108 is triggered". That submission was also supported by the proposition that the gateways to engaging s 108(3)(b) (namely, fabrication or reconstruction or suggestion) were not so broad as the Crown contended.
Each case will turn on its own facts. There is force in the submission that s 66 should not be construed so that it has no work to do in any contested trial because s 108 would be available. But the submission goes too far. For one thing, evidence adduced pursuant to s 108(3) will ordinarily be the subject of a direction confining its use to evaluating the credibility of a witness, and not to prove the elements of the case as would be the position if the evidence were admitted under s 66. For another, there will be particular cases where the complaint does not have any value even in relation to restoring the credibility of the witness. But that is apt to depend upon the way in which the witness' credibility is impugned. As the cross-examination of Bertha discloses, it was put to her that her evidence was prompted by her police interviews. Although the complaint evidence was many many years after the event, it was nonetheless squarely relevant as bearing upon the contention that her recollection was not her own but had been suggested by the police.
For those reasons, while there should be a grant of leave, this ground is not made out.

Ground 2

Senior counsel acknowledged that proposed ground 2 was "novel". He properly acknowledged that because it was a direction that had not been sought below, he needed leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021. He submitted that in addition to the directions to the jury concerning each of the indecent assaults that the assault be deliberate and the conduct be indecent, it was also necessary for the jury to be directed that they must find to the criminal standard that the applicant had an indecent intention. This was said to be consistent with what had been established in He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43. The applicant relied upon the majority decision of the House of Lords in R v Court [1989] 1 AC 28, where Lord Griffiths said at 34: There is agreement that the offence cannot be committed accidentally as, for instance, in the example given by Lord Ackner of ripping a woman's clothing whilst attempting to force an exit from a tube train. Once this concession is made it is apparent that some extra mental element is required than that necessary for common assault, for, in the example given, a person using unnecessary violence to push through the crowd would have the necessary intent to commit an assault. It seems natural to me that this extra mental element should be that which constitutes the essence of the offence, namely, an intent to do something indecent to the woman in the sense of an affront to her sexual modesty or, in other words, an intent to do that which the jury find indecent. Indecent assault is after all a sexual offence appearing in the Sexual Offences Act 1956 and one should on general principle look for a sexual element as an ingredient of the offence. … I also agree with Lord Ackner that it is implicit in the decision of the Court of Appeal in Reg v Kilbourne [1972] 1 WLR 1365 that an indecent intent was regarded by the Court of Appeal as an ingredient of the offence.
Lord Ackner said at 43 and 45: For the defendant to be liable to be convicted of the offence of indecent assault, where the circumstances of the alleged offence can be given an innocent as well as an indecent interpretation, without the prosecution being obliged to establish that the defendant intended to commit both an assault and an indecent one, seems to me quite unacceptable and not what Parliament intended. … I, therefore, conclude that on a charge of indecent assault the prosecution must not only prove that the accused intentionally assaulted the victim, but that in so doing he intended to commit an indecent assault i.e. an assault which right-minded persons would think was indecent.
The applicant with a measure of candour acknowledged the artificiality of this submission in relation to counts 1 to 5. It is, with respect, inconceivable that, consistently with the jury's findings, had the jury also been asked to find beyond reasonable doubt that the complainant (say, in the case of count 1) had not merely intended that to place his hands inside the underpants of Amanda, but also that when doing so, his intention was indecent, the same verdict would not have been returned. If there were anything in this ground, it would be a clear case for the application of the proviso. As the Crown pointed out, the proviso is applicable in some cases even where there had been a misdirection as to the elements of an offence.
Mr Stratton submitted that his contention had greater force in relation to counts 6, 7 and 8, because the kissing of the young girls Bertha and Caroline was less unequivocally indecent than the conduct inflicted upon Amanda.
However, to my mind the position is considerably more complicated than the submissions this Court received. First, I note that in R v Court there was a dissent, on this point, by Lord Goff. To my mind there is force in that dissent, in light of the difficulties in identifying what is an "indecent intent" as something separate from the intentional conduct constituting the assault.
Secondly, Lord Goff pointed out that the point upheld by majority in R v Court was novel, noting at 49C that the law as previously understood "has regularly been applied and acted upon, no doubt in innumerable cases, without any difficulty at all". That is of some significance bearing in mind that s 61E of the Crimes Act was enacted prior to R v Court. If as the applicant submitted, the English and New South Wales offences are cognate, why should not the New South Wales offence have reflected the received, pre-R v Court construction? Further, the offences are differently drafted. The offence in R v Court was created by s 14(1) of the Sexual Offences Act 1956 (UK), which provided that it was an offence "for a person to make an indecent assault on a woman". Counts 6 and 8 concerned former s 61E of the Crimes Act, which, at the time, provided: Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency upon or in the presence of the other person, shall be liable to imprisonment for 4 years.
Count 7 charged an offence of aggravated indecent assault contrary to s 61M (which had not commenced three years earlier when the events charged as count 6 occurred), and was materially identically worded, save that the penalty was imprisonment for 7 years where there were circumstances of aggravation, which included that the alleged victim was under the age of 16 years.
It may be that nothing turns on those differences, but no attention was given to them in argument in this Court. Even if the differences in drafting are immaterial, it by no means follows that the construction given to the English provision in R v Court would be accepted in New South Wales.
Thirdly, the applicability of R v Court to offences involving indecency is far from novel. Shortly after it was determined, this Court rejected substantially the same submission, based on R v Court, in Harkin v R (1989) 38 A Crim R 296. Mr Harkin was convicted in 1988 on two charges of indecent assault contrary to s 61E. Two young girls, both aged 11, said that while sitting on his lap and driving his car, he had held their breasts. Lee CJ at CL, with Wood and Mathews JJ agreeing, addressed this at 301: It was, however, strongly urged upon the court that the learned judge fell into error in not directing the jury that before they could come to a conclusion that the appellant was guilty, they had to be satisfied beyond reasonable doubt that the acts of the accused were intended by him for his sexual gratification. … if the appellant intentionally touched the breast of the girl Elizabeth, it is my view that if there is nothing more, and there is not, that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent, and it is then for the jury to determine whether in the case of a mature man of 38 and a girl of 11 years and nine months that should or should not be regarded as conduct offending against the standards of decency in our community. The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification.
The Chief Judge at Common Law considered R v Court at length, and regarded it at 302 as holding that "where the alleged assault is one which is equivocal, in the sense that it may have a sexual import or it may not, then … it must be shown that he intended it to have a sexual connotation, that is to obtain sexual gratification from it", but that had no relevance to the facts of that appeal.
That reasoning has frequently been followed in New South Wales, as was pointed out in argument. It suffices for present purposes to refer to the case stated to the Court of Criminal Appeal earlier this year in connection with the offence of publishing an indecent article contrary to s 578C of the Crimes Act in Nguyen v Director of Public Prosecutions (NSW) [2023] NSWCCA 42. The same submission, based on the principles in He Kaw Teh v The Queen, was advanced, and rejected by all members of the Court. The leading judgment was given by Button J, which included at [44] the following passage: For many decades, the understanding of the criminal law of England and Wales, New South Wales, and, it seems, New Zealand, has been that indecency is an element in criminal offences that is wholly objective, based upon the contemporary standards of ordinary members of the community. It does not require a mental element (whether intention, knowledge, recklessness, or anything else) about that attribute on the part of an accused person: Purves v Inglis (1915) 34 NZLR 1051; Crowe v Graham [1968] HCA 6; (1968) 121 CLR 375 at 390: [1968] HCA 6; R v Court (1988) 87 Cr App R 144; R v Harkin (1989) 38 A Crim R 296; R v Stringer (2000) 116 A Crim R 198; [2000] NSWCCA 293 at [56]; Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173: [2010] NSWCA 241 at [7]. The submission for the applicant flies in the face of that authority.
No submissions were advanced mentioning, let alone addressing, Harkin v R or Nguyen v Director of Public Prosecutions (NSW) or any of the intervening decisions on point. The applicant's written submissions were brief, even after it was pointed out that there was a great deal of authority in this Court that was completely wrong if his submissions were correct.
If the construction for which the applicant contends were correct, it was a world away from the contest at trial in the present case, which was very black and white. The applicant gave evidence and denied that any of the touching or kissing took place. The issue at trial was a simple one: whether the events occurred at all. This is not a case, where for example, the accused acknowledged the possibility of a non-sexual peck, as opposed to kisses on the lips lasting some seconds as alleged in counts 6-8.
The applicant needs leave to complain about the absence of a direction which was not sought. The statutes creating the offences of which the applicant was convicted were repealed decades ago. They were differently drafted from that considered in R v Court. R v Court was a split decision. There is a wealth of authority which bears on the point the applicant now seeks to raise, which was not addressed in his submissions, which instead gave prominence to the first ground of appeal. That was an understandable course to take, because success on proposed ground 2 would at its highest, speaking practically, only apply to counts 6-8, for which a community corrections order was imposed, and that order is itself entirely subsumed within the custodial sentence imposed for counts 1-5. To be clear, I should add that even if the applicant is correct, it is far from clear that the proviso would not be available in relation to the convictions on counts 6, 7 and 8. But the consequence of the applicant failing to make submissions on the decisions of this Court which bear upon his "novel" point carries with it the consequence that either the Court must determine the point without the benefit of full argument, such that the result turns on decisions which were not mentioned in the written or oral decisions of either side, or else the Court should require the parties to provide further submissions on the line of authority commencing with Harkin and concluding with Nguyen. It is to be firmly borne in mind that it is for the parties to provide, in advance of the hearing, full submissions on points of law sought to be raised, so that both sides can be fully heard on the day the appeal is listed for hearing. In all the circumstances, leave should not be granted to run a point not advanced at trial.

Van Gestel v R

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