BI v The Queen (No 2)
[2018] ACTCA 11
•23 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | BI v The Queen (No 2) |
Citation: | [2018] ACTCA 11 |
Hearing Date: | 31 October 2017 |
DecisionDate: | 23 April 2018 |
Before: | Elkaim and Bromwich JJ, Robinson AJ |
Decision: | 1. Leave be refused to rely upon Ground 2 (except the aspect relying on s 101 of the Evidence Act 2011 (ACT), for which no leave was required). 2. The appeal be dismissed. 3. The stay of the appellant’s sentence ordered on 10 November 2017 be discharged. 4. The appellant’s bail granted on 10 November 2017 be revoked. |
Catchwords: | APPEAL – CRIMINAL LAW – whether guilty verdicts were unreasonable having regard to the evidence on the basis of inconsistency and insufficiency of evidence – whether the probative value of the tendency evidence admitted at trial significantly outweighed any prejudicial effect – asserted want of similarity of conduct for tendency evidence at trial – whether tendency objection was raised below and whether appellant accordingly requires leave to raise tendency point on appeal – appeal dismissed |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5531 Crimes Act 1900 (ACT) ss 61(2), 62(2) and 92K(2) Evidence Act 2011 (ACT) ss 97 and 101 |
Cases Cited: | Abbey v R [2017] NSWCCA 109 Alhassan v R [2017] NSWCCA 73 Vickers v The Queen [2006] NSWCCA 60; 160 A Crim R 195 |
Parties: | BI (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr S Odgers SC (Appellant) Mr J White SC (Respondent) |
| Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 5 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Refshauge J Date of Decision: 16 December 2016 Case Title: R v [BI] Court File Number: SCC 64 of 2016 |
THE COURT:
Introduction and overview
This is an appeal against conviction. The appellant was tried before a judge and jury on an indictment containing 21 counts alleging sexual offences against children. The Crown case relied principally on the evidence of four complainants, without any other direct witnesses to the conduct alleged. One count was the subject of a directed verdict. On 16 December 2016, the jury found the appellant guilty on six out of the 20 counts that were left to the jury, and not guilty of the remaining 14 counts. On 21 March 2017, the appellant was sentenced to a total of four years’ imprisonment, with a non-parole period of two years, backdated to the date of incarceration on 16 September 2015.
There was no appeal against sentence. On 10 November 2017, being 10 days after the hearing of this appeal, the appellant’s sentence was stayed and he was released on bail, for the reasons outlined at [10] below.
The appellant is now 53 years of age. The Crown case involved conduct that was alleged to have occurred between 1995 and 2012, when the appellant was between 30 and 47 years of age. There were four complainants. Guilty verdicts were delivered in respect of conduct relating to three of the four complainants. Both charges concerning alleged conduct relating to the fourth complainant resulted in not guilty verdicts.
The guilty verdicts were returned on:
(a)one count of committing an act of indecency in the presence of a person under the age of 16 years, contrary to s 92K(2) of the Crimes Act 1900 (ACT) (‘Crimes Act’);
(b)four counts of committing an act of indecency upon/on a person under the age of 16 years, contrary to s 92K(2)/s 61(2) of the Crimes Act (the provision was renumbered and the word ‘upon’ changed to ‘on’ after the alleged events giving rise to the first of these four counts), in respect of three different complainants on separate occasions; and
(c)one count of attempting to commit incest with a young person under the age of 16 years, contrary to s 62(2) of the Crimes Act and s 44 of the Criminal Code 2002 (ACT).
It is convenient to refer to a young person under the age of 16, being an element of each of the offences in the indictment, as a ‘young person’.
By an amended notice of appeal dated 5 May 2017, the appellant sought to have all six verdicts and convictions set aside on the basis that those guilty verdicts were unreasonable having regard to the evidence, and, further, that tendency evidence was erroneously admitted at trial. The appellant sought verdicts of acquittal rather than a retrial.
The first ground of appeal asserted that the six guilty verdicts – namely, in relation to counts 1, 5, 11, 12, 13 and 14 – were unreasonable having regard to the evidence. This ground had two aspects. First, in respect of counts 1, 5, 12, 13 and 14, it was submitted that the jury’s verdicts were unreasonable, insofar as it was inconsistent for the jury to convict the appellant on those counts, while finding him not-guilty of certain other counts involving the same complainant. There was said to be no basis for supposing that the evidence sustaining the guilty verdicts was any more reliable than the evidence of the same two complainants in respect of the counts that were found not to have been proven. Secondly, it was submitted that the guilty verdict for count 11 was unreasonable on the basis that the evidence was insufficient to establish the element of indecency.
The second ground of appeal asserted that tendency evidence had been erroneously admitted at trial, such that all six guilty verdicts were fatally tainted. This ground of appeal concerned two pre-trial rulings which had permitted the Crown case to be run as a joint trial, with the evidence of all four complainants to be led as tendency evidence in support of each count on the indictment. It was submitted that the Court should not have been satisfied that the evidence had “significant probative value” in accordance with s 97(1)(b) of the Evidence Act 2011 (ACT) (‘Evidence Act’), or that its probative value outweighed its prejudicial effect in accordance with s 101(2).
The Crown opposed both grounds of appeal. It was submitted that the verdicts of the jury were factually consistent and supported by the evidence. In relation to appeal ground 2, it was submitted that the appellant required leave to bring his grounds of appeal under r 5531 of the Court Procedures Rules 2006 (ACT), and should be refused that leave. This was on the basis that the appellant had not previously raised the arguments now pressed on appeal.
The appellant had completed his non-parole period by the time of the hearing of his appeal. He was only constrained from being able to participate in sex offender courses which would have made him eligible for parole by the fact of this appeal being pending. On 10 November 2017, substantially for that reason, the appellant’s sentence was suspended and he was granted bail by Robinson AJ, on strict conditions, pending the outcome of this appeal.
First aspect of ground 1 – inconsistent verdicts for counts 1, 5, 12, 13 and 14
It was submitted on behalf of the appellant that a factual inconsistency arises where, although the verdicts can stand together in law, they cannot be reconciled having due regard to the individual facts of the case, citing Mackenzie v The Queen (1996) 190 CLR 348 (‘Mackenzie’) at 365-6 and 368. This was said to be a case of the kind described in MacKenzie, in which the different verdicts returned by the jury represented an affront to logic and common sense that was unacceptable and strongly suggested a compromise in the performance of the jury’s duty.
Reliance was also placed on the conclusion reached in Jones v The Queen (1997) 191 CLR 439 (‘Jones’) at 453. In Jones, Gaudron, McHugh and Gummow JJ considered that the rejection of the complainant’s account on one count incurably diminished her overall credibility. It was held that it was difficult to see how it was open to the jury to be convinced beyond reasonable doubt of the guilt of the accused on the other two counts, given that there was nothing in her evidence or the surrounding circumstances which gave any basis for supposing that her evidence was any more reliable for the guilty verdict counts than for the not guilty verdict count.
The submissions for the appellant acknowledged that Jones was not authority for the proposition that in “word against word” cases, mixed verdicts are necessarily inconsistent so as to be legally unreasonable for the purposes of guilty verdicts. However, as was found in Jones, this was said to be a case in which there was, in effect, no discernible basis for supposing that the guilty verdict evidence was any more reliable than the not guilty verdict evidence. The appellant relied on a number of other intermediate appeal court decisions which were said to support a conclusion of factual inconsistency in this case.
In response, the Crown relied on a number of authorities canvassing the relevant principles of unreasonable verdicts and inconsistent verdicts. Those submissions are summarised below.
In relation to the established principles applicable to an appeal against conviction on the basis that a verdict is unreasonable having regard to the evidence, the Crown relied upon the High Court’s decision in Libke v The Queen [2007] HCA 30; 230 CLR 559 at [112]-[114], and the Court’s citation therein of M v The Queen (1994) 181 CLR 487 (‘M v The Queen’) at 492-493, to state the principle that “the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt”. To reach such a conclusion, the Crown submitted that an appellate court must, first, make its own assessment of the sufficiency and quality of the evidence before the jury to determine whether the guilty verdicts could be supported (citing SKA v The Queen [2011] HCA 13; 243 CLR 400 at [22]-[24]), and, second, give full weight to the jury’s role and advantages, given its primary responsibility to determine guilt and its benefit of having seen and heard the witnesses (citing M v The Queen at 493-494).
The Crown further cited:
(a)M v The Queen at 494 to submit that, even when giving full weight to those considerations, “a doubt experienced by an appellate court will be doubt which a jury ought also to have experienced”, except “where a jury’s advantage in seeing and hearing the evidence” could resolve that doubt; and
(b)Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [12] and the Court’s further references to M v The Queen therein, which reiterated that:
…a jury’s finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice.
Finally in relation to unreasonable verdicts, the Crown referred to the principle in The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 at [65]-[66] that any consideration by an appellate court of a jury’s verdict being unreasonable must always be based on the ultimate question of “whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.
On the principles relating to inconsistent verdicts, the Crown cited MFA v The Queen [2002] HCA 53; 213 CLR 606 (‘MFA v The Queen’) as being the leading authority on this issue. In that case, the High Court emphasised that the relevant test was unreasonableness, and not inconsistency of verdicts.
The Crown submitted that Refshauge J gave the proper jury directions required by MFA v The Queen where an indictment contains multiple counts; namely, that the jury should be directed to give separate consideration to each count, often accompanied with an instruction that the evidence of a witness may be accepted in whole or in part. Further, the Crown relied on the statement by Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen at [34] that:
…a verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility.
and, further, that a jury may also draw back from reaching a conclusion beyond reasonable doubt about some part of a complainant’s evidence because the complainant:
…has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.
In this regard, the Crown made note of Refshauge J’s direction to the jury to consider the accuracy or reliability of evidence relating to each count separately.
In response to the appellant’s reliance on Jones, the Crown submitted that the Court in MFA v The Queen (at [34]-[36]) made it clear that cases such as Jones were not to be understood as creating a set of legal propositions different to the test formulated in M v The Queen, and that M v The Queen must be applied in cases of inconsistent verdicts. The Crown submitted that Jones had been confined to its facts in MFA v The Queen, with McHugh, Gummow and Kirby JJ commenting at [89] that: “[i]t always remains for a court of criminal appeal whose jurisdictions is invoked to examine any differentiation in the verdicts to see if it can be justified”. The Crown submitted that the appellant’s reliance on Jones was therefore misplaced.
The Crown submitted that this Court has previously held in GW v The Queen [2015] ACTCA 15; 306 FLR 104 that “whether a conviction is truly inconsistent (unreasonable) depends upon the circumstances of the particular case”, requiring the Court to closely analyse “the differences that are discernible on the face of the transcript… the documentary evidence… having regard to the inherent plausibility or implausibility of relevant conduct” in relation to each count.
The Crown summarised the relevant test for this Court to apply in assessing whether the verdicts are unreasonable having regard to the evidence as being whether “the differentiation in the verdicts returned in the appellant’s trial constituted an affront to logic and common sense or was unreasonable to the point of obliging the intervention of this Court” (citing MFA v The Queen per McHugh, Gummow and Kirby JJ at [87]).
The Crown submissions relied upon an assessment of the whole of the evidence. While only the key aspects of that evidence have been addressed below, the totality of the evidence, to the extent that it goes beyond what is specifically referred to, reinforces the conclusions reached. To resolve the dispute about ground 1, however, it is still necessary to consider the allegations and evidence in some detail.
First complainant (TM) – counts 1 to 10
The first complainant (‘TM’) was the 12-year-old brother of a woman with whom the appellant had lived and had three children. TM’s sister will be referred to as the appellant’s first wife. TM lived with the appellant and his first wife for about a six-month period sometime between October 1995 and May 1996. It was alleged that during that period 10 sexual offences occurred during four separate incidents. The jury found the appellant guilty of two of those 10 counts, gave a directed verdict on one count and returned verdicts of not guilty on the remaining seven counts.
First TM incident – one guilty and two not guilty verdicts
The Crown case for the first incident was that in 1995 or 1996, the appellant suggested that TM should stay in his bed because they were leaving early the next day to go to his workplace. It was alleged that once they were side by side in bed, the appellant touched TM’s penis and bottom, masturbated his own penis and then forced his penis inside TM’s anus and eventually ejaculated.
The appellant was found:
(a)guilty of committing an act of indecency upon a young person – touching TM’s penis and bottom (count 1);
(b)not guilty of committing an act of indecency in the presence of a young person – masturbating himself in TM’s presence (count 2); and
(c)not guilty of engaging in sexual intercourse with a young person – anal penetration of TM with his penis (count 3).
The written submissions for the appellant described the factual basis for this incident in the appellant’s bed, by reference to the trial transcript, as:
(a)the appellant “fiddling with” TM, touching his penis and buttocks [found guilty];
(b)the appellant exposing his penis and “rubbing himself, rubbing his penis” [found not guilty];
(c)the appellant “pushed his penis inside” TM’s “backside”, “it was painful”, the penis was inside for “maybe 20, 30 seconds, 40 seconds”, the appellant and TM were lying on the side facing the same direction [found not guilty].
The written submissions for the appellant asserted that the jury must have doubted what TM alleged in respect of the two counts for which verdicts of not guilty were returned and, therefore, logically should have doubted what he said about the conduct in respect of count 1. However, it is not apparent, as a matter of logic, principle or authority, why a verdict of not guilty, without more, necessarily entails the conclusion that the jury doubted TM’s evidence. It may very well have been the case that the jury accepted that evidence, but did not consider it sufficient to satisfy them beyond reasonable doubt as to the commission of all of the elements of certain offences: see MFA v The Queen at [34]. As was observed in Avery (a Pseudonym) v The Queen [2014] VSCA 86 at [6]:
Contrary to the applicant’s submission, verdicts of not guilty or disagreement on the balance of the charges on the indictment do not necessarily reflect a view by the jury that the complainant was untruthful or unreliable, such that this Court should assess the reasonableness of the three guilty verdicts on the basis that the complainant was a person of damaged credibility. Credit is not a homogeneous and indivisible whole. It simply does not follow that because the jury, or some of them, had a reasonable doubt as to the evidence the subject of the charges other than those upon which a guilty verdict was returned, that it should have had a doubt about the evidence of the complainant on Charges 10, 11 and 12. As Gleeson CJ, Hayne and Callinan JJ said in MFA v The Queen, a verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or demonstrate a want of confidence in the complainant. A verdict of not guilty or a disagreement by the jury may reflect no more than a cautious approach to the discharge of its heavy responsibility. That caution might be attributed to the absence of supporting evidence or detail in the complainant’s account, some level of uncertainty, a faulty recollection, a contrast in different parts of the account that suggest that parts of it are more reliable than others, or to the jury thinking that although a number of offences had been alleged, justice was met by convicting the applicant on some only [citations omitted].
In the appellant’s submission, there was no apparent rational explanation for the jury to differentiate between the charges in the way that they did. In light of the above statements of principle, the submissions for the appellant effectively turned on this case being a clear example of a case in which the evidence as it emerged at trial was such that the not guilty verdicts were incapable of any rational explanation, such that they could not stand with the not guilty verdicts for the same incident involving the same complainant.
The submissions for the Crown defended the reasonableness of the jury’s mixed verdicts by pointing to differences in the evidence for each count and the degree of corroboration available for some counts that was either lacking, or weaker, for other counts. In reply submissions, Senior Counsel for the appellant submitted that where the appeal ground is one of factual inconsistency in the evidence of a complainant who was not directly corroborated, other evidence has little or no bearing on the issue at hand.
There is no clear foundation for the assertion made on behalf of the appellant that non-complainant evidence is necessarily of little relevance or weight in considering whether mixed verdicts are unreasonable for inconsistency. The jury was, conventionally, told to assess the evidence from each complainant and for each count in the indictment separately. That entails the jury having due regard to all of the elements of each offence, and the evidence adduced to prove each element beyond reasonable doubt. Of course, there may be some circumstances in which corroborative or other evidence has little part to play in assessing the jury’s performance of that task; the factual inconsistency asserted may be such that no other evidence can overcome the conclusion that differential verdicts were not reasonably possible. However, that will not necessarily be the case where there is some basis for differentiating between the sufficiency of the evidence for two different counts, such as where the corroborative or other evidence serves to widen the difference in the strength of the evidence as between the guilty and not guilty verdict counts. For example, it may reinforce the evidence for one count, but not for the other.
It is necessary to reproduce the following portion of the transcript of TM’s evidence as to the incident identified in counts 1, 2 and 3 (passage numbering added for ease of reference):
(1)… laid in the bed together, he had his underwear on. He – I guess he started fiddling with me, touching me around my private areas, penis, my behind.
(2)Did anything happen – so you’ve told us that he was fiddling with you. Do you recall if anything further---?---Yes.
(3)Could you tell us what further---?---(indistinct) just in my head. I don’t remember much obviously was a long time ago. He did pull his penis out, we were laying side to side. We were both laying on – like on the side and – and he sort of was rubbing himself, rubbing his penis around my backside and then he sort of just pushed it in and he said, “Sh, sh be quiet, it won’t hurt.”” Whatever---
(4)Okay?---He – he pushed his penis inside, didn’t last very long, maybe 30 seconds, minute. I think just both rolled over and went back to sleep, or to sleep.
(5)Okay. Now I am going to ask you some further questions and see if we can break that down in to some further detail, sir?---Sure.
(6)Now you said that the accused was “fidding” with you and he “touched”, I understand you to say your – your penis and your backside? --- Yes.
(7)Are you able to provide the jury with any further detail about how it is that he touched your penis?---Just with his hand and just – just touching me. I really can’t – yes.
(8)You said - - -?---Just sort of fiddling with me, touching me, fondling – fondling me, I guess.
(9)Do you remember how long he did that for?---No, I don’t. No.
(10)Okay?---Probably not long. I don’t think it was very long at all.
(11)You said that he touched your backside?---Yes.
(12)Are you able to tell us whereabouts on your backside he touched?---No, I can’t (indistinct) no.
(13)Okay?---Just around the general area, I guess.
(14)Now you told the jury that he “pushed it in”?---Yes.
(15)Just could you please sir, just explain in as much detail exactly what you recall about that?---I don’t know what you mean. He was just feeling his hands, rubbing on himself and – and just – yes, push in to my backside.
(16)Pushed - - -?---His penis.
(17)Okay. Do you remember how far in it went?---I don’t know. It was painful though.
(18)Okay?---Of course.
(19)How would you describe that pain?---I couldn’t.
(20)Okay?---I couldn’t describe the pain, no.
(21)Do you remember how long he had his penis inside of you for?---It was very quick. Maybe 20, 30 seconds, 40 seconds, it wasn’t long. It wasn’t very long at all.
(22)Did the accused say anything to you whilst this was happening?---Just “sshh” and “be quiet”, like, “Sshh, it’s all right, it won’t hurt. It’s okay.”
(23)Were you saying anything to him whilst this was happening?---Not that I remember, no.
(24)You said that you were laying side to side whilst this was happening?---Yes.
(25)Are you able to elaborate any more on that?---No.
(26)Were you both - - -?---Both laying on the side, yes, both laying on the side.
(27)Were you both facing the same direction?---Both facing the same direction, yes. That’s all I can remember.
(28)Now, at some point invariably the accused has removed his penis from inside of you. Do you recall what happened immediately after that?---I don’t know. I remember that the sheets were wet and I think he turned over and went to sleep. I think that was it and said something like, “I’ll take you out tomorrow,” or something, or.
(29)Do you remember, sir, how long you had been living at the address in [suburb] before this had happened?---I don’t know.
(30)Do you remember any further detail about that first incident, sir?---I don’t, no.
The written submissions for the appellant asserted that there was no relevant difference between TM’s evidence in respect of count 1 (indecent touching) and count 2 (masturbation in TM’s presence), as reproduced above. Thus, it was submitted, if the jury regarded TM as credible and reliable in respect of count 1, there was no apparent basis on which a different conclusion could be drawn on count 2. Conversely, it was submitted, if the jury did not regard TM as credible and reliable in respect of count 2, there was no apparent basis on which a different conclusion could be drawn on count 1. In substance, the submission was that the nature and content of the evidence was such that counts 1 and 2 were so similar in content and so proximate in time that the two counts had to stand or fall together.
In asserting that there was a reasonable basis for the jury to reach a different verdict on count 2, the Crown submitted that the only evidence for this count was TM’s evidence at passage (15) above that the appellant “was just feeling his hands, rubbing on himself”. It was submitted that this account of the appellant’s conduct was ambiguous insofar as it is not clear what the appellant was doing or where he was rubbing. However, it may be incorrect to characterise this as the totality of the evidence for count 2. As submitted by counsel for the appellant, it is possible that the jury considered that passage in light of passage (3) reproduced above, being TM’s statement that “… he sort of was rubbing himself, rubbing his penis around my backside and then he sort of just pushed it in …”.
Whatever the stance taken by the parties at the trial, the jury as the tribunal of fact were entitled to interpret TM’s evidence as they saw fit. The words in passage (3), “he sort of was rubbing himself”, were capable of being read on their own and understood by the jury as being a reference only to the allegation in count 2 of the appellant having masturbated in TM’s presence. But the jury were also entitled to regard the next part of the same evidence, “rubbing his penis around my backside and then he sort of just pushed it in”, as part of the conduct for count 3 (anal intercourse) rather than for count 2 (masturbation). If that was the way the jury regarded the earlier evidence, then the Crown was correct to assert that the only evidence from TM in relation to count 2 was passage (15), namely, “just feeling his hands, rubbing on himself”. Even if the jury did not take this view and regarded both passages as being evidence in relation to the count 2, there was ample room for the jury to consider that this conduct on the part of the appellant fell short of masturbation.
Having regard to the differing evidence between counts 1 and 2, the appellant’s assertion of unreasonableness in the jury’s different verdicts cannot be accepted. The evidence given in relation to count 1 did not suffer the shortcomings identified above. The complainant’s account of the relevant conduct commences with the clear statement at passage (1), “I guess he started fiddling with me, touching me around my private areas, penis, my behind”. If accepted, that evidence, whether considered alone or with the remaining passages (6) to (13), was ample to satisfy the jury beyond reasonable doubt as to the guilt of the accused as to count 1. Once that nuance is appreciated, there is nothing inherently factually inconsistent with the jury finding the appellant guilty on count 1, for which the evidence was reasonably clear, consistent and detailed, but not guilty on count 2, for which the evidence was less clear or compelling. This did not necessarily involve a rejection of TM’s evidence as to count 2, as opposed to doubt as to the sufficiency of that evidence in the face of the appellant’s evidence denying the event taking place at all. The appellant’s argument that the guilty verdict for count 1 was factually inconsistent with the not guilty verdict for count 2 must therefore fail.
The written submissions for the appellant on count 3 were to the same effect as for count 2, namely that counts 1 and 3 also had to stand or fall together. It was submitted that TM was unequivocal that the penetration alleged had occurred, referring to the specific parts of the evidence reproduced above that were referrable to count 3: see passages (3), (4), (15)-(22) and (28) of TM’s evidence reproduced above. It may be observed that the detail in all of those passages is quite limited, referring to an act of penetration with a degree of equivocation and limited recollection as to the details of what had occurred. Reliance was also placed by the appellant upon the trial judge’s summing up to the effect that the “real issue in this case is whether [what TM said] happened at all”. It was submitted that it could not be the case that the jury considered it would be “merciful” to find the appellant guilty only of count 1 if satisfied beyond reasonable doubt that TM was a truthful and reliable witness in respect of count 3.
The Crown submitted that it was not factually inconsistent for the jury to convict on count 1 but not on count 3, because the different acts occurred at factually distinct points in time and were not contemporaneous in the sense of being simultaneous. The Crown sought to draw a contrast with McCann v R [2014] NSWCCA 79, in which it was held at [20] that acts of cunnilingus and digital penetration alleged by the complainant to have occurred “at the same time” resulted in a finding of inconsistent verdicts, because there was no sound basis upon which to differentiate them and thus the different verdicts for the two counts. The Crown submitted that, by contrast, the two acts here, while said to have occurred in close proximity, were nonetheless in a sequence. The alleged penile-anal penetration occurred after the appellant had allegedly indecently touched TM.
The Crown’s submissions should be accepted in relation to count 3. Upon a careful reading, the somewhat more detailed account given by TM in relation to count 1 than for count 3, as reproduced above, entitled the jury to be satisfied beyond reasonable doubt that the much less serious offence of committing an act of indecency had taken place, while not being so satisfied beyond reasonable doubt that the more serious offence of engaging in sexual intercourse with a young person had occurred. It was not the same evidence about the exact same point in time, although TM’s evidence was that one event followed soon after the other. The jury must be taken to have obeyed the usual direction to consider each count and the evidence supporting it separately.
That approach is not inconsistent with the jury having been satisfied beyond reasonable doubt that the incident had happened as described by TM, but nonetheless retaining a reasonable doubt about all of the elements for count 3 also being established beyond reasonable doubt. The evidence was somewhat stronger and clearer for the lesser offence, and weaker, if not lacking in clarity, for the more serious offence. The different verdicts are capable of a rational explanation and, accordingly, cannot properly be regarded as factually inconsistent: see MFA v The Queen at [85]. The appellant’s argument that the guilty verdict for count 1 was factually inconsistent with the not guilty verdict for count 3 must therefore fail.
Strictly speaking, there was no need to resort to the impact of any other evidence, such as complaint evidence, to understand how it was open to the jury to distinguish in their verdicts between the evidence for count 1 on the one hand, and for counts 2 and 3 on the other. However, it may be observed that this evidence, which is briefly referred to below because it has a bearing on both the first TM incident and the third TM incident, gave some basis for the jury approaching TM’s credibility with caution and only being satisfied beyond reasonable doubt upon the basis of the clearer and simpler evidence for the less serious indecent dealing offence in count 1. This evidence reinforces the conclusions already reached above in relation to his evidence independently of that context. The jury were entitled to more readily be satisfied beyond reasonable doubt as to the less serious charge with less substantial elements in count 1, and to retain a doubt as to the more serious charges in counts 2 and 3 with more substantial elements.
Second TM incident
The Crown case for the second incident was that the appellant and TM had been lying side by side in the appellant’s bed when the appellant forced his penis inside TM’s anus and eventually ejaculated. The jury found the appellant not guilty of engaging in sexual intercourse with a young person (count 4). Understandably, no reliance was placed by the appellant on this separate incident and separate acquittal verdict in relation to the first ground of appeal.
Third TM incident
The Crown case for the third incident was that the appellant took TM to his workplace and showed him pornography on a VHS player, and then commenced to masturbate himself. The appellant was found guilty of an act of indecency in the presence of a young person (count 5). The jury were directed to find the appellant not guilty on a charge of committing an act of indecency upon a young person by forcing TM to touch his penis (count 6), on the basis that TM’s evidence did not involve an unequivocal assertion, or direct evidence, that the appellant had forced TM to touch his penis. The remaining event that was alleged resulted in a verdict of not guilty, being for a charge of attempted sexual intercourse with a young person by pushing TM’s head towards his penis (count 7). The first point to note is the important distinction between count 5 as an alleged substantive offence and count 7 as an alleged attempt offence.
The written submissions for the appellant asserted that, as regards count 7, TM was unequivocal that, while the pornographic video was playing, the appellant had placed his hand on the back of TM’s head and pushed his head towards the appellant’s erect penis. It was therefore submitted that it was difficult to see any relevant difference between TM’s evidence in relation to counts 5 and 7, such that, in effect, the verdicts for both had to stand or fall together. While it was acknowledged that it was an element of count 7 that the appellant intended that TM should place his mouth around the appellant’s penis, it was submitted that it was “impossible to imagine” that the jury would have had any doubt about that element if otherwise satisfied beyond reasonable doubt that the appellant had used his hand to push the back of TM’s head towards his erect penis. Thus the appellant’s case for inconsistent verdicts depended upon a careful comparison between the evidence for count 5 as against the evidence for count 7.
In order to appreciate better both the specific submissions for the appellant in relation to counts 5 and 7 and the Crown response, it is necessary to reproduce the portion of the transcript of TM’s evidence in which he described this incident (passage numbering added for ease of reference):
(1)He put on one of the videos. We were having a break in the side room. He put on one of the videos. He unzipped himself, started playing with himself, his penis was erect.
(2)I’ll just stop you there, sir. Sorry to interrupt. Whilst he has this video on and he’s exposed his penis, where were you?---In the same room.
(3)Do you remember whereabouts in that room vis-à-vis the accused?---No.
(4)Okay. Please continue?---I don’t. Pretty close together, it would have been – we were sitting in a seat next to each other, pretty close.
(5)Please continue, sir?---As I said, yeah, he put the porn on. He tried to force my head towards his penis. He tried to get my hand to touch him. I don’t remember if I touched him or not, I can’t remember that, and I think that was about it. He tried to push my head towards him, tried to push my hand towards him.
(6)When you say he tried to push your head towards him, are you able to give us any more detail about how he went about doing that?---With his – with his hand on the back of my head, I guess, you know, I was only very small then. I mean, I would have only been, you know, two feet tall, three feet tall, I guess. He just – he put his hand on the back of my head and tried to push my mouth towards him.
(7)Do you remember if he succeeded in pushing your head - - -?---Look, I’m not sure and I don’t remember.
(8)Is there any more detail you can remember?---I don’t remember much after that. I don’t know if anyone come back to the shop then and (indistinct) but I don’t remember much after that. I don’t know if I got up and walked away. I just don’t remember much after that.
(9)Can you remember how long he had his penis exposed for?---A minute or two.
(10)Is there any further detail about that incident that you recall, sir?---No, I don’t think I have.
(11)So the last incident - - -?---I just remember him – I just remember when he unzipped himself he started playing with himself and then he tried to get me to start playing with him. I don’t remember if I done anything or not.
(12)When you say he was playing with himself are you able explain [sic] exactly what you mean by that?---He was just playing with himself with his hands.
(13)So what exactly do you recall him to be doing with his hand?---Just touching himself, touching his own penis with his own hands. While the – while the porn was on the TV and trying to get me to touch him as well.
The Crown submitted that there was corroborative evidence, in the sense articulated in Doney v The Queen (1990) 171 CLR 207 (‘Doney’) at 211, that confirmed, supported, strengthened or rendered more probable the account given by TM as to count 5. Such evidence was said not to be available to the jury in respect of count 7.
As Doney makes clear, corroborative evidence may be circumstantial. The corroboration relied upon by the Crown was that the appellant’s employer gave evidence, by reading from his statement, that he kept about 12 to 15 pornographic videos and a television at the workplace in the relevant period, which was further supported by a photograph of that location depicting a television. This was submitted to be supporting evidence of the kind referred to in Joyce v The Queen [2015] ACTCA 23 at [32] and Abbey v R [2017] NSWCCA 109 at [28] that rendered it more likely that the appellant had played the pornographic video as deposed to by TM, and therefore had masturbated in response to it. The Crown submitted that this evidence was not corroborative of TM’s evidence as to count 7. The Crown also submitted that TM’s credibility had been damaged to some degree, which made it less likely that the jury would as readily be satisfied beyond reasonable doubt as to more serious conduct alleged without such corroboration, citing Lepine v R [2017] NSWCCA 83 at [37].
The Crown’s submissions should again be accepted. This was a case in which the corroboration provided an additional basis for the jury to distinguish between TM’s evidence in relation to count 5, when compared to TM’s evidence for count 7. It had the effect of enabling the jury to be more readily satisfied beyond reasonable doubt as to count 5. That is all the more significant when it is appreciated that it is not entirely accurate to describe TM’s evidence on count 7 as being unequivocal, given TM’s account of the conduct in question was qualified with the statement “I guess” and the statement that he was not sure and could not remember whether the appellant succeeded to any extent in pushing his head towards the appellant’s penis. In this regard, it may be observed that the word “towards” is unclear as to the extent to which TM was saying the appellant had caused his head to move in the direction of the appellant’s penis.
The differences in the evidence between count 5 on the one hand and count 7 on the other, in combination with the corroboration for count 5 (which makes it more likely to a degree that a pornographic video was played and therefore that the appellant masturbated in response to it) provides a rational explanation for the jury retaining a reasonable doubt as to the commission of the more serious offence in count 7. This is reinforced by the consideration of the detail of the complainant’s evidence that follows.
For count 5, the evidence was reasonably clear as to what TM said had happened. At passage (1), TM said:
He put on one of the videos. We were having a break in the side room. He put on one of the videos. He unzipped himself, started playing with himself, his penis was erect.
For count 7, the evidence was less clear. At passage (5), TM said:
He tried to force my head towards his penis. He tried to get my hand to touch him. I don’t remember if I touched him or not, I can’t remember that, and I think that was about it. He tried to push my head towards him, tried to push my hand towards him.
In this passage, it is unclear whether TM was saying that the appellant had tried to push his head towards the appellant, or his hand towards the appellant, or perhaps both. While the follow-up questions introduced a measure of greater clarity, suggesting that TM was referring to the appellant trying to move TM’s head or mouth towards the appellant, they provided no greater clarity as to how far this went, and a degree of equivocation about what had actually happened. TM’s evidence at passage (6) was:
With his – with his hand on the back of my head, I guess, you know, I was only very small then. I mean, I would have only been, you know, two feet tall, three feet tall, I guess. He just – he put his hand on the back of my head and tried to push my mouth towards him.
This equivocation was reinforced by passage (7):
Do you remember if he succeeded in pushing your head---? – Look, I’m not sure and I don’t remember.
The remaining passages, (8) to (13), reinforced with some clarity the conduct relevant to count 5, while also reflecting TM’s uncertainty and equivocation in relation to the conduct relevant to count 7.
TM’s uncertainty is especially relevant having regard to the need for the jury to be satisfied that the conduct went far enough to constitute an attempt generally. The jury was required to find that the appellant had more than just an intention to cause TM’s head to become proximate to the appellant’s penis. Given TM’s equivocation about how far the appellant had pushed his head, it is not “impossible to imagine” that the jury were not satisfied beyond reasonable doubt that the appellant intended that TM should place his mouth around his penis as a direct result of his conduct. It follows that the appellant’s argument that the guilty verdict for count 5 was factually inconsistent with the not guilty verdict for count 7 must fail.
Fourth TM incident
The Crown case for the fourth incident was that the appellant and TM were at another person’s house. It was alleged that the appellant, while showing TM pornography on a VHS player, got TM to touch his penis and attempted to force TM’s head towards his penis. The jury found the appellant not guilty on all three counts of an act of indecency in the presence of a young person (count 8), an act of indecency upon a young person (count 9) and attempted sexual intercourse with a young person (count 10). Understandably, no reliance was placed by the appellant on this separate incident and those separate acquittal verdicts. It is not therefore necessary to repeat the submissions by the Crown as to the greater inherent weaknesses in the evidence of TM in support of these three counts.
TM complaint evidence and credibility
TM disclosed the alleged offending to his mother for the first time some eight years later, and subsequently to other family members. The Crown case was that the appellant later made a number of money transfers to TM’s bank account in response to threats by TM to disclose the offending if the appellant did not assist him financially, and also bought him items and gave him cash.
In cross-examination, TM stated that he did not report the incidents of alleged abuse by the appellant in 2013 after he contacted the appellant and demanded payment of money. This was despite not having received any payments at that time. He did not go to police about the incidents involving the appellant until September 2015. He gave evidence that he was convicted of the offence of obtaining property by deception in 2008. He denied a suggestion made in cross-examination that he only went to police when the appellant ceased making payments to him as gifts.
TM’s mother gave evidence that TM was sent to live with his sister (the appellant’s first wife) after he was issued with an apprehended violence order. His behaviour was worse when he returned home about six months later. When he was 20 or 21, he disclosed to his mother that he had been sexually abused by the appellant. When she asked for more detail, he told her to be quiet and not mention it. She did not discuss it with him in detail until September 2015.
TM’s sister gave evidence that TM disclosed to her and her mother that he had been “molested” by the appellant about a week after he returned from living with his sister in 1996.
The Crown case was that it was open to the jury to consider that the complaint evidence in relation to TM was confirmatory of the acts alleged, citing MFA v The Queen at [86]-[87], whilst also submitting that aspects of this evidence would have caused the jury to approach TM’s evidence with a degree of prudent caution. This caution can readily be seen to operate with greater force and effect for more serious charges with additional elements. The complaint evidence was clearly more supportive of the less serious count 1 and count 5 offences, referring in general terms to TM being abused and mistreated, than for the more serious charges in counts 2, 3 and 6 to which no specific reference was made.
The complaint and other evidence were a double-edged sword for the Crown case. On the one hand, some parts were corroborative of TM’s account, at least as to the less serious conduct; on the other, some aspects, such as the lack of detail and TM soliciting money from the appellant, provided some reason to doubt TM’s motives and therefore his credibility, especially in relation to the more serious conduct. This provided an additional basis for the jury to require better evidence before being satisfied beyond reasonable doubt as to the more serious charges arising out of the first and third incidents involving TM.
Conclusion as to inconsistency in the verdicts for the first and third TM incidents
The appellant’s case for inconsistency of verdicts for both the first and third TM incidents is not made out.
The third complainant (OI) – counts 12 to 19
The third complainant, referred to as OI, was one of the appellant’s children with his first wife. By the time of the events deposed to by OI, the appellant was living with his second wife and their two children. The Crown case related to three separate alleged incidents in the period from 23 January to 3 July 2009, when OI was 11 years old.
First OI incident
The first incident was alleged to have occurred after the appellant picked OI up from her mother’s house, where she lived, and took her to his home. OI had a shower after the appellant had cooked for both of them and had a Skype conversation with the appellant’s second wife, who was overseas. The Crown case was that the appellant made OI remove her underwear and then undressed himself, got in the shower and used a shower/washing pouf to wash her. The appellant was found guilty of committing an act of indecency upon a young person (count 12).
The Crown case was that OI then got dressed in her pyjamas and got into the appellant’s bed. The appellant got into bed without his pants on and OI could see his penis. The appellant made OI touch his penis with her hand. He was found guilty of an act of indecency upon a young person (count 13).
It was alleged that the appellant then tried to get OI to put his penis in her mouth by pushing her head down towards his penis and encouraging her verbally, but she refused. He was found guilty of attempted incest (count 14). The jury returned a not guilty verdict on a further allegation of incest relating to the appellant removing OI’s pants and performing cunnilingus upon her (count 15).
The submissions for the appellant addressing the four counts for the first OI incident asserted that it was difficult to see any relevant difference between OI’s evidence going to the two counts of committing an act of indecency and the count of attempted incest, for which there were guilty verdicts, and the count of incest for which there was a not guilty verdict. It was submitted by the appellant that OI was unequivocal that the appellant put his tongue on her vagina, and that while this was a more serious offence than the other three offences, it could not be the case that the jury considered it would be merciful to find the appellant guilty only of the less serious offences if satisfied beyond reasonable doubt that she was a truthful and reliable witness for that more serious offence. Again, the submissions in reply for the appellant suggested that evidence other than that of OI could have little bearing on an appeal ground of factually inconsistent verdicts, a proposition that is too sweeping to be accepted unless the factual similarity is of such a nature and degree that other evidence cannot support any differentiation in the verdicts.
The Crown submissions emphasised the differential strength of the evidence for the first OI incident as against the second OI incident and the third OI incident, as well as the differential effect of the evidence of seven complaint witnesses apart from OI. The Crown also submitted that issues with OI’s credibility at the trial provided a sound basis for the jury adopting a cautious approach to the discharge of their heavy responsibility, especially in areas with less corroboration and more scope for concern about credibility.
In order to appreciate better both the specific submissions for the appellant in relation to counts 12 to 15 and the Crown response, it is again necessary to reproduce at some length the portion of OI’s evidence from her police interview in which she described this incident (with counts noted in relation to the corresponding conduct):
Q25.Start at the beginning and tell us everything.
A.All right. So when I was eleven, um, my dad sexually assaulted me. Um, do I, I don’t know, I’ll explain that, um, so it happened when my stepmother, she was away with – with my stepbrother and sister. So it was just like – his house was all empty and like when I was younger I – I rarely got to spend time with him because he was always with them. So whenever I had the chance I’d spend time with him because I was always daddy’s little girl and my one daddy, you know, he got married and well like he didn’t have much time with them – for me, so, yeah, so I was there with him alone and – and then like he made me get in the shower with him and – and like he washed my body and stuff [count 12] and – and then after that like we like we went to bed and he made me sleep in the same bed as him. And, um, do I have to say in detail what he did or?
Q26.Whatever you recall.
A. Yeah. He, um, made me touch his, um, his thing [count 13] and then he like he tried to get me to put my mouth on it [count 14] but I – I wouldn’t. And, um, he also – he also licked, um, down there on me [count 15] and that – that’s pretty much it. But it happened three times like twice with the same thing with the shower and the bed and then another time it happened on the couch as well. But, yeah, that’s – that’s about it. It’s a lot easier to say it today than yesterday.
…
Q35.…Take you all the way back to the start. Okay?
A.Yep.
...
Q36.You said that you’re here to talk about when you were sexually assaulted ‑ well when your dad sexually assaulted you.
A.Yep.
Q65.So he’s picked you up because you’re his favourite.
A.Yeah.
Q66.And then he’s driven you to his house.
A.Yeah.
Q67.Which was in [suburb]. Is that right?
A.Yeah.
Q68.Do you remember what time he picked you up?
A.Oh, no.
Q69.No. Okay. Then you said he made you dinner.
A.Yep.
Q70.And it was an omelette with drinking yoghurt.
A.Yep.
Q71.And then you’ve had the shower.
A.Yep.
Q72.Yep. Okay. So tell me everything from the time that you were in the shower to the time that you got out. What happened?
A.Well normally when I was a little girl like if me and my brother would have a shower together like obviously I didn’t have boobs but like I’d always wear under-underwear and he would always wear underwear so we didn’t see the private parts. But, um, like I – I did have underwear on until he made me take them off.
Q73.Okay.
A.Because that’s what I’m used to if I’m having a shower with – and then, um, like he starts washing my body and - - -
Q74.You said he made you take them off.
A.Yeah.
Q75.Tell me about that?
A.Um, I don’t know really – what do you mean?
Q76.Why did he make you take them off?
A.I – I don’t know he just – he just, he just did.
Q77.Yep. Okay. So you’ve taken your underwear off.
A.Yep.
Q78.You said, “He started washing my body.” Is that right?
A.Yep. Yep.
Q79.Tell me about that?
A.Um, like it’s like…
Q80.Yep, how was he washing your body?
A.Um, he got one of those puffs I think they’re called like shower puffs.
Q81. Yep.
A.Yeah, and put soap on that and, yeah.
Q82.Yep. Okay. And when he was washing your body where was he washing?
A.Everywhere.
Q83.Yep.
A.Yeah.
Q84.Was there any particular area that he washed?
A.It was just all over my body like on my legs, arms, torso, back and, yeah, that area.
Q85.Okay. Alright. And then what was your dad doing was he in the shower as well?
A.Yep.
Q86.Okay. Was he – did he have any clothes on?
A.No he was – he was naked.
Q87.Okay. Tell me about that. What – what was he doing?
A.Um I don’t really remember.
Q88.Yeah. Don’t remember.
A.No.
Q89.That’s okay. So he’s had a shower - - -
A.Yep.
Q90.He’s in the shower with you.
A.Yep.
Q91.He’s used one of the puff balls, put some soap on that - - -
A.Yeah.
Q92.And washed your body all over.
A.Yeah.
Q93.Yeah. You don’t remember anything else that he was doing or anything like that.
A.No.
Q94.Okay. And then you got out of the shower is that right?
A.Yeah.
...
Q146.Yep. Why did you go into his bed?
A.Because I think he told me to but I don’t know. I don’t really recall it.
Q147.Yes. Did you have another bed that you’d normally stay in there?
A.Um, well recently when I’ve stayed there I’ve stayed with my – in the same room as my step-brother and he’s, um, eleven.
Q148.Okay. Alright.
A.Yeah.
Q149.So you’ve gone into the bedroom. Yeah. Okay. And then you hopped into bed.
A.Yeah.
Q150.Okay. Tell me everything from the time that you hopped into bed till the time that he got out.
A.Um, well we – we didn’t get out afterwards we just went to sleep.
Q151.Okay. All right.
A.Yeah.
Q152.Tell me about that.
A.Um, I don’t really remember like full details.
Q153.Yes.
A.But, um, sorry. Just a little bit of dust. Um, I don’t – I don’t really remember like a lot of it. It’s just - - -
Q154.Okay. Tell me what you do remember.
A.All I – all I – all I remember is like him getting into bed with no pants on and then trying to get me to like put my mouth on, on it [count 14] and just touch it and stuff. Um, and then him taking off my pants and then underwear and going down on me and – and after that like he – he pulled up my pants and then he – he went to the toilet and then like put pants on and everything and then we went to sleep.
Q155.Okay. So just so I’ve got it right. He got into bed.
A.Yeah.
Q156.He was wearing no pants.
A.Yeah.
Q157.Okay. What could you see?
A.His penis.
Q158.Yes. Describe how his penis was?
A.Um, I don’t know – I don’t know.
Q159.You don’t recall?
A.No.
Q160.Okay. So he’s got into bed.
A.Yep.
Q161.You could see everything.
A.Yep.
Q162.He’s then tried to put your head down to his penis.
A.Yep.
Q163.Yep. Tell me what you recall seeing there?
A.What like?
Q164.Yep tell me what you saw? You said he made you put your hands on his penis.
A.Yep.
Q165. Yep. Did you touch his penis?
A.Yep.
Q166.Yep. Okay. And you said he tried to put his penis in your mouth.
A.Yep.
Q167.Did his penis go in your mouth?
A.No.
Q168.No. Okay. What did you do?
A.I kept saying no, no, would like push my head away.
Q169.Okay. So you kept saying no, pushed your head away.
A.Yep.
Q170.Okay. And then you said he’s taken your pants off?
A.Yep.
Q171.Yep. Do you recall how he took your pants off?
A.No. He just pulled them down.
Q172.Just pulled your pants down and your underwear?
A.Yeah.
Q173.And you said he went down on you.
A.Yep.
Q174.Tell me what you mean by that.
A.He, um, put his tongue on my private parts.
Q175.Yes. And tell me what – could you feel?
A.I don’t know just his cold tongue.
Q176.Yes.
A.Yeah.
Q177.And where could you feel that touching?
A.I don’t really remember?
Q178.Yes. That’s okay.
A.Yeah.
Q179.Take your time. I mean you said he went down on you.
A.Yeah.
Q180.Okay. Tell me everything that you remember about that part.
A.Um, I just remember like his like – I remember that his tongue was cold like on my vagina.
Q181.Yes. Okay. So you could remember his tongue was cold.
A.Yeah.
Q182.And your vagina was what sorry?
A.I just said it was like – when it was on – when he was touching me.
Q183.Okay. So his tongue was cold on your vagina?
A.Yeah.
Q184.And how long did that go on for?
A.I’m not sure.
…
Any questions from the time they hopped into bed about the incident?
BENSLEY:
Q201.You said that you kept saying no?
A.Yeah.
Q202.Do you recall him saying anything?
A.Um, he kept going, oh, you know, come on, you know, just – just a little bit. But I kept saying no and then in the end he just virtually gave up.
Q203.Okay. So tell me how he reacted to you saying no?
A.Oh, no, I don’t really remember how he reacted. I, yeah.
Q204.And you said he tried to move your head towards his private parts – or his penis - -
A.Yeah. Yeah.
Q205.Yeah. What kind of force did he use?
A.Oh, I guess like a medium force like not – like not full forceful but like trying to like, you know, guide it there I guess.
Q206.And where was he guiding you from?
A.I don’t know.
Q207.How was he touching you?
A.Um, it was the back of my head.
Q208.Okay. So with – how – how – what part of his body? So both hands, one hand?
A.One hand.
Q209.One hand?
A.Yeah.
Q210.And he was guiding your head?
A.Yeah.
Q211.With one hand?
A.Yeah.
Q212.Do you recall which hand?
A.Um, maybe the right hand I think.
Q213.Do you recall him doing anything else at that time?
A. No.
OI also gave oral evidence, pre-trial, in relation to count 13 as follows:
If I can ask you to recall the first incident you spoke about, you said that your father made you touch his penis?---Yes.
Are you able to tell the court how your father made you touch his penis?---He grabbed my hand and put it on his penis.
Did he do anything else to make you touch his penis?---He said it.
Do you recall what it was that he said?---No, I don’t remember.
The appellant was interviewed by police on 5 October 2015 in relation to the alleged offending against the third complainant, OI. He denied the allegations, and told police that he had helped her with a head lice treatment in the shower, with them both wearing underpants, but that he could not recall when this had happened. OI’s mother gave evidence that OI did not contract head lice while she was at school at that time because of the religious headwear that she wore, which may be seen to significantly undermine the appellant’s otherwise innocent explanation as to what he was doing in the shower with OI.
The appellant said that the fourth complainant, EI, had been there at the same time as the third complainant, OI, had helped to shower EI. He only recalled one occasion when OI was there without her sister. He said that OI had never slept in the same bed as him, but that EI had several times. The reference to OI only being there on one occasion without her sister was evidence that the jury were entitled to use in support of the first incident, but in derogation of the remaining incidents, at least to the point of contributing to reasonable doubt in combination with the quality of that evidence when critically assessed.
A number of observations may be made about OI’s evidence for the first incident. First, in relation to the police interview evidence, a video of which was played to the jury, the general summary of what had taken place (at answers 25 and 26) was clearer as to what had occurred in relation to counts 12, 13 and 14 than it was for count 15, where the evidence at answer 26 was that the appellant “licked ... down there on me”. That was not an unequivocal reference to her vagina, as asserted on behalf of the appellant. When a more detailed account was given of the incident by OI, the assertions relating to counts 12, 13 and 14 were repeated and were reasonably clear as to what OI was referring to up to answer 169. This was supported in reasonably clear terms by the oral evidence reproduced above in relation to count 13. By contrast, interview answers 174 and those following in relation to count 15, while being a little more direct than answer 26, still only referred to “private parts”. Question 177, which was clearly intended to elicit more detail or precision by asking “[a]nd where could you feel that touching”, produced the initial response of “I don’t really remember”, which may then have cast an evidentiary shadow over what followed in relation to count 15. When pressed, OI identified her vagina, but the questions after that were more leading in nature, albeit building on prior answers. It was inherently less compelling evidence.
As the Crown pointed out, the jury may have been looking for some “extrinsic element of corroboration” on which to convict, relying on Alhassan v R [2017] NSWCCA 73 at [12], which was weaker in relation to count 15 than it was for counts 12, 13 and 14. A former neighbour of the appellant was told the following by OI about the first incident, at a time when OI’s mother (the appellant’s first wife) was seriously ill in hospital:
Can you tell the jury again in as close to OI’s words as you can what further information OI provided to you at that time?---She said that while she was staying at her father’s place in – I think it was [suburb] they had showered together. He wanted her to put his penis in her mouth and she said no to that so he got her to touch his penis.
Did she provide any further details in relation to those acts?---She said that he had – her words were he “went down” on her.
Having had OI disclose those things to you, did you ask any further questions of her?---I asked her what she wanted to do about – actually I asked her what she wanted to and why had she come forward about it now and she was scared her mother was going to pass away and she’d have to go and live with her father, and she was concerned for her and her little sister EI.
It may be seen that the above complaint evidence made no reference to the count 12 conduct, was reasonably clear as to the count 13 and count 14 conduct, and was less clear as to the count 15 conduct by saying no more than that the appellant “went down” on OI. The complaint evidence for count 15 did not clarify precisely what OI was referring to and, therefore, while being generally supportive, did not take her direct evidence much further. At the same time, it provided clearer and better corroboration as to the conduct in relation to counts 13 and 14, and to a lesser extent, count 12. While a jury would have been entitled to regard the complaint evidence as to count 15 as sufficient corroborative evidence, and the direct evidence as sufficiently clear as to what OI was referring to, they were equally entitled to regard it as falling short of overcoming what they were entitled to view as weaknesses in the direct evidence from OI referred to above. It was open to the jury to have decided this either way.
The better corroborative evidence in relation to count 12 was that the accused, in cross-examination, denied getting into the shower with OI, yet she had told her mother that the appellant had showered with her, albeit without further detail. OI and the appellant showering together was also the subject of other complaint evidence, such that at least the event of showering with involvement by the appellant was corroborated. As to counts 13 and 14, there was the direct complaint evidence, reproduced above, that OI had touched the appellant’s penis and had wanted to put his penis in her mouth. There was also more vague complaint evidence from another witness that the appellant had touched OI “inappropriately”, but had not made any reference to oral sex of any kind.
The jury were entitled to regard the evidence for count 15, both direct and corroborative, as being less clear or certain than the evidence for the other three counts. That view of the evidence would have been sufficient to raise reasonable doubt for the jury as to the commission of the more serious offence. There was room, for example, for the jury to be concerned that OI was mistaken as to where the appellant had placed his tongue, that she had exaggerated what had taken place, or that her memory was insufficiently reliable in this respect given the six-year lapse in time to the point of being interviewed.
The different verdicts reflect a conscientious and careful jury having obeyed the express direction of the trial judge to scrutinise the evidence for each offence separately with careful regard to the dangers of convicting the appellant on uncorroborated evidence of any of the complainants. It does not suggest a jury afflicted with inconsistent reasoning. That is especially so in circumstances where the direction was followed soon after with the trial judge restating the jury’s duty to accept the evidence of a witness in whole or in part, with none of the complainants being an exception to that.
Second OI incident and third OI incident
The second incident was alleged to have taken place during the same period as the first, when the appellant’s second wife was overseas. The Crown case was that the appellant had a shower with OI, got into bed with her and tried to get her to touch his penis and to put his penis in her mouth, which she refused, saying she was tired. OI recalled the appellant getting frustrated with her. The jury found the appellant not guilty of two counts of an act of indecency upon a young person (counts 16 and 17) and not guilty of attempted incest (count 18).
The third incident was alleged to have taken place when OI was visiting the appellant’s house during the same period in which his second wife was overseas. She recalled the events occurring on a weekday, when he picked her up after school and took her to buy a book while he also went to a bank. The Crown case was that OI did not stay the night or have a shower, but, rather, that she was watching television when the appellant told her to come and sit next to him on another couch. It was alleged that the appellant pulled down his pants and told OI to put her mouth on his penis. She refused. He was found not guilty of attempted incest (count 19).
In order to appreciate better both the specific submissions for the appellant and the Crown response, it is again necessary to refer, at some length, to the portion of OI’s evidence from her police interview in which she described the second and third incidents, first in general terms in the passage reproduced above, being answer 25 and the reference to “it happened three times”, and then in somewhat greater detail about these two incidents, as follows:
Q284.And you said this happened on three occasions?
A.Yep.
Q285.So that one being the first one?
A.Yep.
Q286.When – tell me about the next – the second one?
A.The second time was – was pretty much the same thing that happened.
Q287.Yep.
A.And then the third time was – there was – we didn’t have a shower the third time.
Q288.Yep. Okay.
A.I don’t – I don’t think I stayed over that night either.
Q289.Okay.
A.But, um, like, oh, well first I was sleeping on a separate couch but he made my [sic] come to the couch that he was on.
Q290.Yep.
A.And then I think he – I don’t really remember this one very well.
Q291.That’s all right.
A.Um - - -
Q292.I’ll stop you there though. You said the second time it was – you had a shower and that as well.
A.Yeah. Yeah.
Q293.Okay. Do you recall when that was?
A.Not really.
Q294.No?
A.It was – it was while my step mum was away the same year.
Q295.Yes. The same year?
A.Yeah.
Q296.Okay.
A.But I’m not like I don’t know how long apart they were.
Q297.Yep. Okay.
A.Yeah.
Q298.And tell me everything about that – the second incident you remember?
A.Um - - -
Q299.You said you had a shower.
A.Yeah.
Q300.Yep. What else do you recall from that?
A.I – I just remember going to bed, um, I don’t think he licked like down on my vagina that time.
Q301.Yep.
A.But he – he tried to get me to play with his penis and put my mouth on his penis as well.
Q302.Yep.
A.But then, um, I kept saying no that time and then I just turned over and then – then he just gave up as well.
Q303.Yeah. Okay. So before he tried to make you suck his penis, yeah, tell me from the time that he got into – into bed – how you two come to be in the bed on that second incident.
A.Um, well after the shower I – he was still in the shower while I was getting ‑ getting like – when I was drying myself and getting dressed.
Q304.Yep.
A.Got into my PJs and got into bed again.
Q305.Yep. Okay.
A.Yeah.
Q306.So you’ve had a shower - - -
A.Yeah.
Q307.You got out first?
A.Yeah.
Q308.He was still in the shower and you got dressed?
A.Yeah.
Q309.Got into bed. Yeah. And then he’s come in?
A.Yeah.
Q310.Yeah. What was he wearing?
A.I don’t remember.
Q311.Don’t remember?
A.Yeah.
Q312.Okay. And then – so from the time that he’s got into bed tell me everything.
A.Yeah.
Q313.I understand that it was a while ago but tell me everything that you can remember.
A.Um, I don’t – I don’t really remember this one very well either.
Q314.Yep, that’s all –
A.Just remember the first time the most. Um, I guess it was kind of similar to the first one where he kept, you know, asking me to put my mouth on it and kept trying to get me to play with it. And then after I kept saying no he got really frustrated.
Q315.Yep.
A.And then I just like, you know, moved away and got like as close as to the edge as possible and turned over.
Q316.Yep. Okay. Alright. So you said he was – he got frustrated, tell me about that.
A.Um, don’t know I was a little bit frustrated and I kept saying that I was tired and I don’t know.
Q317.Yep. So he kept saying – you kept saying you were tired?
A.Yeah.
Q318.Alright. And you said this was in the – the same year?
A.Yeah.
…
Q324.Yeah. You said you don’t think he licked?
A.Yeah.
Q325.What makes you think that?
A.Because I only remember his like his cold tongue once.
Q326.Okay. And again you said he tried to get me to play with his penis?
A.Yep.
Q327.And tried to get you to put your mouth on his penis?
A.Yeah.
Q328.Tell me more about how he tried to do it this time?
A.Um, it was – it was pretty much the same way with his hand and trying to move my – my head towards it.
Q329.And the amount of force he used?
A.Um, about the same as last time as well.
CLARK: That’s it?
Q330.Alright. Once again that was in his bed?
A.Yeah.
Q331.Yep. Alright. And then you mentioned a third incident where he didn’t have a shower? [no answer recorded]
…
Q365.Okay. So you were on the couch with him.
Yeah.
Q366.You said he pulled down his pants.
A.Yeah.
Q367.Can you describe for me how he pulled down his pants?
A.Um, I think he had like a hand on each side.
Q368.Yep.
A.As he pulled them down.
Q369.Yep. Was he wearing underwear?
A.Um, yeah, he pulled both of them down.
Q370.So pulled both of them down.
A.Yeah.
Q371.Do you recall what pants he was wearing?
A.Um, grey tracksuit pants.
Q372.Okay. So he’s pulled his grey tracksuit pants down.
A.Yeah.
Q373.With his underwear as well?
A.Yep.
Q374.Tell me what you could see?
A.His penis.
Q375.Yep. And how did his penis appear?
A.Like are you asking if it was like hard or if it was soft?
Q376.Yep.
A.Yeah. I think it was hard like obviously I was eleven I wouldn’t know but I think obviously it could have been. I don’t – I don’t know.
Q377.Yep. Okay. So you think – you think it was hard.
A.Yep.
Q378.Yep. And then tell me about what happened then? You said he asked you to suck him off, is that words you used?
A.Yeah. Yeah.
Q379.Yep.
A.Oh, he didn’t say suck me, he just said, like, put your mouth on it.
Q380.Put your mouth on it?
A.Yeah.
Q381.Okay. And what did you say?
A.I – I said no and I walked – I walked back to the other chair. He had like he kept asking me to come back and (indistinct) I said no.
Q382.You said no.
A.Yeah.
Q383.Did you touch his penis at all in any way?
A.No.
Q384.No.
A.No.
A number of observations may be made about this evidence. First, the account as between the second and third incidents crosses over several times, making it, in parts, hard to follow what is being referred to. Confusion of this kind may be productive of doubt. Second, OI says about these two further incidents that she does not remember either of them very well. Third, aspects of the details provided were not as clear as for the first incident. Fourth, there was no detailed lead-in of how she came to be at the appellant’s house, the meal preparation, the details about showering, or anything else to make the second and third incidents as clear or, perhaps, as credible or reliable as the first incident.
The Crown relied upon the following cases as to how a jury may approach multiple offences and produce differential verdicts:
(a)Joyce v The Queen [2015] ACTCA 23 at [32]-[33]:
32.Given the medical and complaint evidence referred to, we have concluded that the jury simply followed the primary judge’s instructions (see [20] above) to assess the complainant’s evidence and any other relevant evidence, such as medical evidence, in respect of each charge separately and that there was no need for all of the verdicts to be the same. As observed in MFA at [34] per Gleeson CJ, Hayne and Callinan JJ, in the case of sexual offences, of which there may be no objective evidence, it is not unreasonable for some, or all, of the members of a jury to require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. Their Honours made this observation in the context of jurisdictions that require unanimous verdicts. The ACT is such a jurisdiction. Their Honours went on to say at [34]:
The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility.
41. The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
The above passages are also important when it comes to understanding the balance of the majority judgment in Hughes. Senior Counsel for the appellant asserted that the second sentence in [40] in Hughes – “Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded.” – was not a statement of any test of what is sufficient for tendency evidence, but, rather, a statement about how such evidence is likely to be used. That much may be accepted.
The first ground of appeal, considered second in Hughes, concerned the question of whether the tendency evidence relied upon could properly be characterised as possessing significant probative value. After outlining the evidence of the complainants in some detail, which constituted the direct evidence for the charges in relation to each complainant, and the tendency evidence for each other count (apart from the adult workplace tendency evidence), the majority engaged in the following reasoning as to ascertaining whether tendency evidence has significant probative value:
57. An inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience. Often, evidence of such an inclination will include evidence of grooming of potential victims so as to reveal a "pattern of conduct" or a "modus operandi" which would qualify the evidence as admissible at common law. But significant probative value may be demonstrated in other ways. In this case the tendency evidence showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers‑by. This level of disinhibited disregard of the risk of discovery by other adults is even more unusual as a matter of ordinary human experience. The evidence might not be described as involving a pattern of conduct or modus operandi – for the reason that each alleged offence involved a high degree of opportunism; but to accept that that is so is not to accept that the evidence does no more than prove a disposition to commit crimes of the kind in question.
58. Given the complainants' ages, consent was not an issue in any of the counts. It was the defence case on each count that the complainant had fabricated her account. That the tendency evidence did more than prove a disposition to commit crimes of the kind in question, and was actually of significant value as proof of his guilt of the offences charged, can be illustrated by hypothesising separate trials in respect of each complainant with the only evidence against the appellant being the evidence of the complainant. In each such case, the jury would be presented with a prosecution case inviting it to conclude beyond reasonable doubt that the appellant had engaged in behaviour towards the complainant which involved predatory sexual activity pursued by taking opportunistic advantage of a social or family or work occasion in circumstances in which the appellant courted a real risk of discovery by other adults.
59. Considered in isolation, JP's evidence might have seemed inherently unlikely: the appellant, a family friend, at dinner in JP's home, absented himself from the party and came into her bedroom, and without making any attempt to ensure her silence, commenced to invasively sexually assault her while his daughter lay sleeping in the same bed. The jury might well be disinclined to accept JP's evidence as satisfying it, beyond a reasonable doubt, that the appellant had, in fact, engaged in conduct which was so much at odds with the jury's experience of the probabilities of ordinary human behaviour. Proof of the appellant's tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of the appellant's conduct might otherwise have raised.
60. The force of the tendency evidence as significantly probative of the appellant's guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience.
61. As explained above, there are two matters which must be considered. The first matter, involving the extent to which the evidence supports a tendency, does not require that the evidence be considered "by itself". In the words of s 97(1), the evidence of either "conduct" or "a tendency" can be used to determine the tendency relied upon by "having regard to other evidence adduced or to be adduced". In other words, evidence of a tendency might be weak by itself but its probative value can be assessed together with other evidence.
…
64. The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. The Court of Criminal Appeal did not err in finding that the tendency evidence of each of the complainants and AA, BB and VOD met the condition imposed by s 97(1)(b) in relation to each count in the indictment.
The passages above demonstrate the conclusion of the majority in Hughes that the significant probative value of tendency evidence pertaining to sexual conduct towards children does not have to be demonstrated in any particular way, such as by patterns of conduct or modus operandi. In Hughes, there was no such pattern or particular methodology, because the behaviour was opportunistic rather than planned. Instead, significant probative value was demonstrated in part by the risks of detection that Mr Hughes had taken, which made his conduct even more unusual. That was particularised in the Crown tendency notice in that case, presumably because it was raised as an issue. Significant probative value was also – and more tellingly – demonstrated by consideration of the hypothesis of what would have happened if there had been separate trials for each complainant, in which, in isolation, the conduct might have seemed inherently unlikely: see [59] in Hughes reproduced above. The force of the evidence in Hughes was that the complaint made about Mr Hughes’ conduct should not be rejected as being unworthy of belief because it appeared improbable as a matter of ordinary human experience.
The tendency appeal ground as pleaded and argued
A preliminary issue on ground 2 as to tendency evidence is whether the appeal point now sought to be advanced, in each respect save as to s 101, was raised before Burns J (and therefore maintained before Refshauge J). As most of the arguments now relied upon were not raised before Burns J, leave is required before they may be relied upon in this Court, at least beyond the issue raised as to s 101. That is because, as this Court pointed out in Munro v The Queen at [130], quoted above at [109], leave is required to rely upon a point that was not taken at the trial from which the appeal is brought: see also Poniris v R [2014] NSWCCA 100 at [51]-[56]; Sulaeman v R [2013] NSWCCA 283 at [124]-[140]; and Vickers v The Queen [2006] NSWCCA 60; 160 A Crim R 195 at [66]-[78], especially [76]. There is no lesser requirement for leave to advance a different basis for asserting a want of significant probative value than was advanced pre-trial, merely because it involves, in substance, an assertion that the decision of the High Court in Hughes is said to have rendered erroneous the conclusion reached by Burns J as to significant probative value, but upon a basis that was never argued before his Honour.
A better and fuller description of the tendency to be proven and relied upon was necessary to be able to carry out the required evaluation in Hughes and in this case, at least when the wider objection to significant probative value was raised for consideration. In Hughes, that was assisted, but not entirely met, by particulars to the Crown tendency notice. The narrower version sufficed for the objection taken before Burns J, albeit that it perhaps carried an unfortunate first impression of inadequacy in failing to go beyond propensity and relevance. Undoubtedly, it would have been better to have a fuller description of the tendency relied upon by the Crown in this case, rather than leaving that to contextual material. In other circumstances, that shortcoming might have led to a miscarriage of justice.
The fact of the intervening High Court decision in Hughes is relevant, but not of itself determinative either way, as to whether leave should be granted. The focus must be on the interests of justice, including the administration of justice by giving proper effect to r 5531 of the Court Procedures Rules 2006 (ACT). Importantly, the interests of justice are a consideration not confined to the appellant’s perspective or interests. Relevantly, reliance upon a point not raised below requires the appellant to demonstrate a miscarriage of justice, a burden that was not addressed, let alone discharged, by the appellant. Nor was any objection taken to any direction given to the jury. Rather, this aspect of the appeal turned on the ruling in the terms it was given by Burns J and extended by Refshauge J.
The amended notice of appeal simply asserts that “[t]endency evidence was erroneously admitted”. Stated in this form, the appeal ground avoided confronting the need for leave. The written submissions in chief for the appellant take issue with [25] of the reasons given by Burns J for admitting the tendency evidence, where his Honour stated that:
…[s]exual attraction to children is a characteristic sufficiently unusual to give it significant probative value in determining whether an individual possessing such a characteristic has committed a sexual crime against a child.
Issue is also taken with Burns J’s reasons at [37], with it being submitted that it was “erroneous to find the necessary level of probative value on this basis alone”. However, that sentence must be understood both in the context of the law as it existed at the time, and in the context of the rest of [25] and the rest of Burns J’s reasons in addressing the more limited arguments that were being advanced before his Honour. His Honour said:
23.Turning to the second objection made by the accused, that there were insufficient similarities between the alleged offences to give the evidence significant probative value, the accused acknowledged that s 97 of the Evidence Act does not require, on its face, close similarity between events and circumstances. He, nevertheless, submitted that consideration of similarities between events and circumstances remains critical to the assessment of probative value, citing BP v R; R v BP [2010] NSWCCA 303 and Velkoski v The Queen [2014] VSCA 121; 45 VR 680.
24.In my opinion, much depends upon the fact or facts in issue to which the tendency evidence is directed, and the process of reasoning required of the jury. Where, for example, tendency evidence is adduced to prove that it was the accused who committed a particular offence, as opposed to any other person, it may be expected that the probative value of the evidence will depend upon the extent to which similarities between events reveals a forensic signature, but this will not always be the case. For example, evidence that an accused person has a history of using, or threatening to use, knives on others may, together with evidence of opportunity and motive, have significant probative value in establishing that it was the accused who murdered the victim by stabbing: see R v Vojneski [2014] ACTSC 66 (R v Vojneski). In forensic signature cases the process of reasoning which the jury is asked to adopt is that the similarities between events is so striking as to suggest that it must have been the accused who committed the charged offence. For the similarities to have probative value, they must be such as to suggest that it was the accused, and not some other person, who committed the charged offence. In the second type of case, of which R v Vojneski is an example, there is no striking similarity between the tendency evidence and the charged events. The tendency evidence nevertheless demonstrates something of great probative value, being that the accused has a tendency to use knives against others when he is angry. This is a form of circumstantial evidence. In that type of case, the Crown asks the jury to consider that circumstance together with other circumstances such as evidence of opportunity and motive to infer that the accused, and not some other person, committed the offence.
25.The fact in issue in the present is not the identity of the alleged assailant. The accused is well known to each of the complainants. The fact in issue is whether the accused acted in the way alleged by the complainants. It is, in my opinion, open to the jury to reason that he is more likely to have so acted if he has a proven sexual attraction to children. Proof of such a tendency by itself, could not establish his guilt with respect to any of the charges, but it is a circumstance which the jury could consider, together with the evidence of each of the complainants, to determine whether they are satisfied that the accused committed a charged offence. The use of evidence of a tendency of the accused to be sexually attracted to children in this way does not involve impermissible propensity reasoning, as it does not rely upon the jury reasoning from the tendency evidence that the accused must be guilty of a charged offence because he is the sort of person who would commit such an offence. In contrast, the evidence in R v Watkins of earlier offending was only capable of establishing that the accused was a dishonest person, and the jury were in effect invited to reason that because he was a dishonest person he was more likely to have committed the charged offences. The difference in the present case is that there is a point of similarity between the different offences said to have been committed by the accused, in that they are all sexual offences involving children. Sexual attraction to children is a characteristic sufficiently unusual as to give it significant probative value in determining whether an individual possessing such a characteristic has committed a sexual crime against a child. Adducing evidence of a tendency of an accused to be sexually attracted to children is clearly prejudicial, as there exists the possibility that the jury may misuse the evidence, but it is standard practice for the jury to be warned against such impermissible reasoning.
26.I note in passing that the extent to which similarity between events is a precondition to the admission of tendency evidence, and the apparent difference of approach between the Courts of New South Wales and Victoria on this issue, is, as I understand it, to be considered by the High Court after special leave to appeal was granted in Hughes v The Queen [2016] HCATrans 201 on 2 September 2016.
…
34.I was satisfied that the evidence would have significant probative value. I therefore turned to the test under s 101 of the Evidence Act, which provides that tendency evidence presented by the prosecution cannot be used against an accused person unless the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the accused.
35. The accused submitted:
It is contended that “sexual cases ... are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard.” De Jesus v The Queen [1988] HCA 65; (1986) 61 ALJR 1, 3 (Gibbs CJ): R v Fitzpatrick [2012] (sic) ACTSC 102 [21] (Burns J). This concern is heightened in cases in which sexual acts against children are alleged. There is a very real risk that if the jury finds allegations on one indictment or some of them proved that its members may determine guilt on the other on the basis of disposition without proper consideration for the strength of each complainant’s evidence. In other words, the jury might reason no more rationally than that, if the respondent molested [two other persons], he did the same to the complainant, and the emotion not rationality would govern’: R v GAC [2007] NSWCCA 315; (2007) 178 A Crim R 408.
36.It may be accepted that sexual cases, and particularly those involving alleged offences against children, are particularly apt to elicit strong emotions. The cases cited by the accused, however, do not stand for the proposition that tendency evidence cannot, or even should not, be admitted in cases involving alleged sexual offending against children. Caution must, however, be exercised. An unnecessary proliferation of counts involving multiple complainants, or unnecessary expansion of the ambit of the trial by reference to uncharged acts, may tip the balance in favour of rejecting an application to lead tendency evidence, and, where applicable, ordering that the indictment be severed.
37.The tendency which the Crown will be permitted to allege is a tendency to be sexually attracted to children. That is sufficient for present purposes. I declined to allow the Crown to lead evidence of the uncharged acts because of their slight probative value as evidence additional to the charged acts, and the prejudicial effect of proliferation of alleged impropriety by the accused.
The issues raised in relation to the tendency ground of appeal may be summarised thus:
(a)first, as to significant probative value following the decision of the High Court in Hughes;
(b)second, as to the approach taken by Burns J to the requirement in s 101 that the probative value of the tendency evidence significantly outweigh any prejudicial effect; and
(c)third, and significantly affected by Hughes, as to asserted want of similarity of conduct for the tendency evidence led directly to prove count 11 (in relation to the neighbourhood child, BB).
First tendency issue on appeal: significant probative value following Hughes
The live issue raised by the appellant’s first issue is not the first question identified at [41] in Hughes as to whether the evidence supports the asserted tendency, which was hard to refute. On any view, the capacity of the complainant’s evidence led in relation to the case concerning other complainants to establish the appellant’s asserted tendency was compelling, a point that was accepted by senior counsel for the appellant during oral submissions, referring to the evidence as showing a “strong tendency to have sexual interest in children”. Rather, the live issue concerned the second question from Hughes as to whether the tendency that was readily able to be proved made more likely the facts constituting proof of the elements of each charged offence and, if so, whether its probative value significantly outweighed any prejudicial effect (being the second tendency issue on appeal). Senior Counsel for the appellant challenged the probative value of the tendency evidence as failing to meet the threshold suggested in the last sentence of [41] in Hughes:
… there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
The written submissions for the appellant, addressing the first issue of significant probative value, suggested that [57]-[60] in Hughes meant that a tendency to commit crimes of the type with which an accused has been charged will not of itself satisfy the test of significant probative value, and that something more than proof of disposition to commit crimes of the type charged is required. So stated, the proposition is unexceptional and literally reflects what the majority said in Hughes. However, the submission goes further in complaining that no such process of reasoning was present in the reasons of Burns J in the present case, and in suggesting that his Honour went no further than to rely upon propensity as meeting the test of significant probative value.
In particular, the written submissions for the appellant on the first issue raised in support of ground 2 focused on the sentence in [25] of Burns J’s reasons, reproduced above, that “[s]exual attraction to children is a characteristic sufficiently unusual to as to give it significant probative value in determining whether an individual possessing such a characteristic has committed a sexual crime against a child”, and also upon the like reference in [37] to a tendency to be sexually attracted to children being sufficient for the purpose of admitting the charged acts as tendency evidence, but not the uncharged acts. For the reasons that follow, this is an unfair characterisation of his Honour’s reasons, and also fails to acknowledge why more was not said, which is primarily because the issue was not raised in the course of the pre-trial argument.
In oral submissions, the Crown submitted that it was a mistake to treat Hughes as providing any general test for what specifically will make an established tendency pass the threshold of having significant probative value. Rather, Hughes should be treated as being illustrative of how tendency evidence in a particular case can be used to illuminate a particular issue in a trial, with the need to do so beyond bare or mere propensity. Thus Hughes was a case in which a tendency described as having a sexual interest in children and acting upon that interest was able to meet the threshold when regard was had to the risk of detection and the way in which the tendency evidence could meet what would otherwise happen with separate trials in terms of the separate accounts given being inherently unlikely. The Crown submitted, in effect, that this case was not very different from Hughes.
In Hughes, quoted above at [151], important context to [61] and [62] is given by [57] to [60], which provide details of the evidence in that case. The earlier passages make it clear that the necessary assessment may be contextual and fact-driven, albeit also assisted in that case by particulars to the tendency sought to be relied upon. In Hughes, the evidence provided strong support for a tendency to engage opportunistically in sexual activity with underage girls. In this case, the appellant was contending, from his police interview and extrapolating from that interview, that none of the alleged conduct had taken place. The tendency evidence, taken together, significantly advanced the Crown case by addressing the difficulties of proving each incident in isolation. It is important to note that this contextual analysis was not conducted by Burns J because it was not raised as an issue before his Honour. The same may be said in relation to the extension of Burns J’s ruling by Refshauge J.
In the case of Burns J in particular, his Honour reproduced the incidents relied upon by the Crown. His Honour observed at [14] that the Crown submitted that each of the incidents sought to be relied upon were relevant to establishing the alleged tendencies, and each had significant probative value, because they increased the likelihood that the charged acts took place. The passage from [25] of Burns J’s reasons, relied upon by the appellant to suggest that his Honour did not carry out any evaluative exercise as to significant probative value that went beyond the statement of the tendency, does not do justice to the exercise his Honour both expressly and by necessary implication carried out. His Honour must have carried out a reasonably careful evaluative exercise, because the Crown was only permitted to rely upon incidents that were also charged acts, rather than those acts that remained uncharged. His Honour also confined the tendency reasoning to state of mind, and did not allow it to be extended to a tendency to act in a particular way.
Moreover, Burns J, after addressing in some detail each of the three issues that were raised on behalf of the appellant, expressly stated at [34] that his Honour was satisfied that the evidence would have significant probative value, expressly meeting the requirement in s 97(1)(b) that “the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value”. Any infelicity in the expression of reasons at [25] – and it should not even be accepted that this is a fair characterisation of what his Honour was stating – requires his Honour’s reasons to be read as a whole to properly and fairly comprehend what was being said.
While it is neither necessary nor appropriate now to conduct in full the exercise that was not required below because the issue was never raised, a careful examination of the impugned evidence reveals that in many important respects, the evidence of tendency in this case may be seen to have greater probative value than in Hughes. In particular, the charged acts that were permitted to be relied upon as tendency evidence generally had a higher degree of repetitive similarity than the uncharged acts which were not permitted to be relied upon. While Hughes makes it clear that such similarity is not required, when it is present it may, and in this case did, add to its probative value.
The appellant’s conduct towards all of the complainants, but especially those for whom guilty verdicts were returned, was perhaps more reflective of a general pattern of behaviour, or modus operandi, than was the case in Hughes. Each incident involved the appellant taking advantage of the opportunity that was presented when he was alone with a child – being either a child related by former marriage (TM), a lineal descendant (OI and EI) or child from the neighbourhood who was present in his home (BB) – and entailed a process of cajoling and persistence, rather than threats, force, violence or even overt aggression. Further, the very nature of the conduct, involving, as it did, ordinarily unbelievable acts against a child related by former marriage, against two of his own children and, at his own home, against a neighbourhood child that he had seen but did not know well, involved real risks of detection. The acts were liable to be so extreme as to be improbable in isolation. The tendency evidence was a powerful answer to any such suggestion.
This sort of more detailed evaluation of the particular features of the evidence sought to be relied upon, in the context of the remaining evidence, and more besides, would undoubtedly have been engaged in by Burns J had any such issue been raised. Features such as those just referred to may explain why there is no suggestion that the appellant raised any issue as to significant probative value in this way and, in particular, did not challenge the Crown’s argument to that effect, as recorded by Burns J, in the way that is now sought to be advanced. His Honour was not required to address issues that were not raised and was entitled to proceed upon the basis of apparent acquiescence, dealing only with the points of departure or difference expressly or implicitly raised. A judge’s reasons are meant to explain and resolve competing arguments, rather than engage in hollow and apparently uncalled-for rhetoric. If this appeal was to succeed, it would not be due to any failing on the part of his Honour, nor of Refshauge J for the same reason. Yet the appellant seeks to have this Court engage in that exercise for the first time on appeal, which has been done to a limited extent above. This approach underlines why leave is required in situations such as this.
The conclusion reached by Burns J, and adopted and extended by Refshauge J, was not shown to be attended by any error, let alone that any miscarriage of justice was shown to have occurred. To the contrary, all of the tendency evidence relied upon by the Crown, in the context of the rest of the evidence, did have significant probative value going well beyond merely proving the tendency or merely proving relevance: see further Hughes at [64]. It plainly rendered the facts in issue more likely to have occurred, applying a process of reasoning closely mirroring that of the High Court in Hughes at [57]-[60] and having due regard to [64] of those reasons. It is apparent that Burns J, and Refshauge J, were also so satisfied as to significant probative value, albeit that neither was called upon to spell out in detail why that state of satisfaction had been reached due to no issue being raised in that regard.
The appellant’s reliance on the decision of the Victorian Court of Appeal in Bauer (a Pseudonym) v The Queen [2017] VSCA 176 (‘Bauer’) at [62], elaborated upon at [82], as to mere propensity reasoning not being sufficient is not supported by what transpired in this case. It should be noted that Bauer may in any event be seen to be in some doubt following the grant of special leave to appeal to the High Court, in part directly in relation to [82]: see R v Bauer (No 2) [2017] HCATrans 269 at lines 400 to 420. Those passages suggest that a focus on finding special features of the tendency evidence, rather than the totality of the evidence, may be a misapplication of Hughes. Even if that focus is not ultimately found to be misplaced, and Bauer was correctly decided, it may be observed that this case was more like Hughes than Bauer was. The risks that the appellant was taking as to detection were on par to those taken by Mr Hughes, and the impact of the absence of the tendency evidence was at least as great, if not even greater, given the improbability of the appellant engaging in sexual contact with a former wife’s brother, two daughters and a neighbourhood child he did not really know.
The probative value of the tendency evidence substantially outweighed any prejudicial effect. It comfortably exceeded any prejudice, for the simple reason that no real prejudice beyond its probative effect and the points raised with Burns J and addressed by his Honour was apparent, let alone demonstrated.
The first aspect of appeal ground 2 sought to be relied upon for the first time on appeal, if it had been argued below, could easily have been met. There is no proper basis to suppose error in the conclusion reached as to the tendency evidence having significant probative value. It follows that leave to rely upon the tendency ground of appeal, never clearly articulated in the notice of appeal, should be refused. If that conclusion was to be wrong, and leave should have been granted, the ground would not in any event be made out and, accordingly, the appeal on that aspect of ground 2 would fail.
Second tendency evidence issue on appeal: s 101 probative value significantly outweighing any prejudicial effect
In relation to the second tendency issue on appeal concerning the last step under s 101, the written submissions for the appellant contend that Burns J did not state that his Honour was satisfied that the requirements of s 101 had been met, and asserted that no reasons had been given. It is clear that his Honour found that the requirements of s 101 were satisfied, even if those precise words were not used: see [34] to [37] reproduced above. It is unhelpful to challenge a decision on a purely linguistic basis, without attempting to grapple with the substance of what is said, let alone identify error in the language that his Honour used. No error is apparent in the conclusion his Honour plainly enough reached as to the probative value substantially outweighing any prejudicial effect. It is not enough to complain, in substance, that his Honour did not go far enough in meeting a rather faint submission that the requirements of s 101 were not met. His Honour amply addressed the issue that was raised, in the manner in which it was raised. That conclusion is sufficient to dispose of the issue as to the proper application and resolution of s 101. Leave was not required to raise this part of ground 2, but the appeal in this respect should fail.
Third tendency issue on appeal: asserted want of similarity of conduct for the tendency evidence led directly to prove count 11
The third tendency issue on appeal concerning the appellant’s challenge to the admission of tendency evidence concerned the admission of the evidence of BB in relation to count 11 as tendency evidence in support of the balance of the charges in the indictment. This followed the ruling by Refshauge J, by which his Honour extended the ruling made by Burns J in relation to the remaining complainants. The substance of the challenge was to assert that the incident involving BB was different in a number of significant ways from the remaining charged events, namely:
(a)that he was not a member of the appellant’s family; and
(b)that the conduct only involved touching BB’s leg and asking to “touch” (the meaning and significance of which has already been canvased above at [94] to [100]).
It was therefore argued that, “properly analysed”, the asserted tendency did not have significant probative value with respect to the other alleged offences. Tellingly, no proper analysis was attempted in support of this argument.
As noted above, the second issue before Burns J was that the tendency evidence sought to be relied upon lacked significant probative value because of insufficient similarity. On that issue, the appellant’s position has worsened since his trial, rather than improved, because the Victorian Court of Appeal case of Velkoski (relied upon by the appellant before Burns J in support of this ground) was disapproved by the High Court in Hughes, as discussed above. The position is that such similarity is not required, at least in a case such as this, although it may assist if it is present. This basis for maintaining an asserted lack of significant probative value would thus be doomed following the ruling against that proposition by the High Court in Hughes.
In the context of Hughes, the third tendency issue on appeal may therefore be disposed of quite swiftly. First and foremost, it is little more than an attempt to bring back the legislatively abandoned requirement of the common law for similarity of conduct in cases such as this in which identity is not an issue. As such, it runs foul of Hughes. Secondly, and in any event, the extent of the asserted dissimilarity is exaggerated. The tendency was not confined to incest. It was directed to children, albeit not strangers. There was, it seems, a greater degree of caution on the part of the appellant in seeking some kind of approval to “touch” BB. Whatever view is taken as to what the appellant was asking BB to let him do, it was open to the jury to conclude that the conduct was generally directed to the same sort of outcome as had been either sought or achieved in relation to a child related by former marriage and his daughters. The real substance of the asserted lack of similarity is illusory.
The third aspect of the appellant’s challenge to the tendency evidence is therefore not made out. Moreover, it also relied upon a point not taken pre-trial, and no miscarriage of justice has been demonstrated. The continued reliance before Refshauge J on the arguments relied upon before Burns J did not open the door to argue on appeal, without leave, points that were not taken before either of their Honours. Leave should therefore be refused as to the third issue raised in support of ground 2 and, in the alternative, if leave is granted, that part of that ground should fail.
Conclusion
Leave to rely upon ground 2 should be refused, except as to the second issue, which fails. The appeal should be dismissed.
| I certify that the preceding one hundred and seventy-nine [179] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Elkaim and Bromwich JJ and Robinson AJ. Associate: Date: 23 April 2018 |
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