CA v R

[2017] NSWCCA 324

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	CA v R [2017] NSWCCA 324
Hearing dates:	22 September 2017
Decision date:	19 December 2017
Before:	Beazley ACJ at [1] Walton J at [2] N Adams J at [3]
Decision:	The appeal against conviction is dismissed.
Catchwords:	CRIMINAL LAW – conviction appeal – whether trial judge erred in admitting context evidence – whether evidence relevant – whether evidence ought to have been excluded under s 137 of the Evidence Act 1995 (NSW)
Legislation Cited:	Crimes Act 1900 (NSW), ss 61M(1), 61M(2) Evidence Act 1995 (NSW), ss 55, 97, 101, 137
Cases Cited:	Abbosh v the Queen, Bene v The Queen [2011] NSWCCA 265 Can v The Queen [2007] NSWCCA 176 DJV v R (2008) 200 A Crim R 206; [2008] NSWCCA 272 Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 House v The King (1936) 55 CLR 499. IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 KJS v R (2014) 86 NSWLR 603; [2014] NSWCCA 27 L'Estrange v R [2011] NSWCCA 89 Qualtieri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95 R v Adams (No 2) [2016] NSWSC 1359 R v Arvidson (2008) 185 A Crim R 428; [2008] NSWCCA 135 R v BD (1997) 94 A Crim R 131 R v Shamouil (2006) 6 NSWLR 228; [2006] NSWCCA 112 R v SJRC [2007] NSWCCA 142 R v Wickham (unreported, Court of Criminal Appeal (NSW), 17 December 1991) R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121 R v Young (1996) 90 A Crim R 80 Riley v The Queen [2011] NSWCCA 238 Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 Vickers v the Queen (2006) 160 A Crim R 195; [2006] NSWCCA 60
Category:	Principal judgment
Parties:	CA (Appellant) Regina (Respondent)
Representation:	Counsel: Mr A Bellanto QC (Appellant) Mr P Coady (Respondent)   Solicitors: Mr Y Maksisi (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/00141601
Publication restriction:	There is a statutory non-publication order under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) in place in relation to the name of the complainant and any details that may identify him.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 19 August 2015 Before: Hoy SC DCJ File Number(s): 2013/00141601

Judgment

1. BEAZLEY ACJ: I have had the advantage of reading in draft the reasons of N Adams J. I agree with her Honour’s reasons and proposed order.

2. WALTON J: For the reasons stated by N Adams J, I would dismiss the appeal.

3. N ADAMS J: On 5 August 2015, the appellant pleaded not guilty to five counts of aggravated indecent assault. The complainant, who shall be given the pseudonym “John”, was the son of a family friend. The circumstance of aggravation is that at all relevant times John was under the age of 16 years. The trial proceeded before Hoy SC DCJ and a jury of twelve. On 19 August 2015, the jury found the appellant guilty on all counts.

4. On 11 March 2016, the appellant was sentenced to an aggregate sentence of four years’ imprisonment with a non-period of two years and three months. The appellant appeals against the convictions. He does not seek leave to appeal against the sentence.

5. The five counts pertained to two separate time frames. The first tranche of offences was brought contrary to s 61M(1) of the Crimes Act1900 (NSW) in the form in which it was until its amendment on 2 January 2009. Counts 1 and 2 were alleged to have occurred between 30 June 2006 and 30 June 2007 and Count 3 was alleged to have occurred between 1 January 2007 and 30 June 2007. John was born in April 1996 and was 10 or 11 years old at the time of these offences. The second tranche of offences, Counts 4 and 5, was brought contrary to s 61M(2) of the Crimes Act. Count 4 was alleged to have occurred between 1 January 2011 and 16 December 2011 and Count 5 was alleged to have occurred on or about 27 January 2012. John was 15 years old at the time of these offences.

6. John alleged that there was a further incident that occurred in between these two tranches. He alleged that his family, the appellant’s family and another family visited a lookout while on holiday in Victoria in October 2009 and that, at the lookout, the appellant grabbed his penis. John became angry and hit the appellant. A number of persons were present for the altercation but no other witnesses saw the appellant grab John’s penis. I shall refer to this as “the lookout incident”.

7. The lookout incident could not be included as a count in the indictment as it occurred outside of New South Wales. Instead, it was relied upon as “context” evidence.

8. The appellant relies upon a sole ground of appeal that the trial Judge erred in admitting evidence of the lookout incident at the appellant’s trial. The determination of this appeal thus concerns the discrete consideration of whether evidence of the lookout incident was relevant within the meaning of s 55 of the Evidence Act1995 (NSW) and, if it was, whether it should it have been excluded under s 137 of the Evidence Act.

The evidence at trial

9. Given that the sole ground of appeal concerns the admissibility of evidence of a discrete event, I do not consider it necessary to summarise the evidence at the trial in any great detail. Most of the evidence at the trial was in the form of evidence of complaint, which was made to a number of people, and cross-examination regarding the five counts on the indictment and their surrounding circumstances. 12 civilian witnesses were called at the trial.

10. Both John’s family and the appellant’s family were originally from Sri Lanka. They met in Sydney in about 1996 and became close friends. They spent time together socialising. John has two younger sisters and the appellant and his wife have two daughters.

Counts 1 and 2

11. John’s evidence in chief was played to the jury by way of DVDs containing his recorded interviews with the Joint Investigation Response Team (“JIRT”) on 5 March 2012 and 12 March 2012.

12. Counts 1 and 2 were referred to as “the pond incidents” in the trial. John told police that in 2007 the appellant had asked him to help clean the appellant’s pond at his home in Quaker’s Hill. After they cleaned the pond, the appellant told John to have a shower in the ensuite to his bedroom. The appellant came into the shower with his underpants on while John was in the shower. The appellant started washing John and he rubbed John’s penis (Count 1). After they got out of the shower, the appellant told John to lie on the bed and he used a towel to wipe down John’s body. He also rubbed John’s penis and scrotum (Count 2).

13. Some time after these assaults, the appellant and his family moved to a house in Carlingford.

Count 3

14. Count 3 occurred in the bedroom of the appellant’s daughter at the Carlingford house. John was watching a comedy show on the daughter’s iPod in the room when the appellant came into the room. John and the appellant were alone in the house at the time. The appellant lay down next to John, massaged his head and back, and then took John’s pants off and rubbed his penis until it became erect. This incident was referred to as the “iPod incident” in the trial.

Count 4

15. Count 4 occurred about three and a half years later and was referred to in the trial as the “Big Momma’s House” incident. John told police that he, his two sisters, and the appellant’s two daughters were all at the appellant’s house in Carlingford. They stayed up late watching the film “Big Momma’s House 3”. The girls went to sleep on the futon and John went to bed in the bedroom of one of the appellant’s daughters. The appellant came into the room after midnight. He started doing work on his laptop before getting into bed with John. John moved away from the appellant. The appellant hugged John and started rubbing his penis on John’s leg. John told police that the appellant tried to flip him over onto his back, but he resisted and the appellant gave up.

Count 5

16. Count 5 occurred after John returned to Australia from Sri Lanka on his own in January 2012. John’s father had had a heart attack in Sri Lanka and he and John’s mother did not return to Australia until February 2012. The appellant picked him up from the airport and John stayed at the appellant’s house before moving to the home of another family friend. On 27 January 2012, John awoke to find the appellant standing nearby. John told police that the appellant “dropped himself on top of [him]” and squeezed his penis. John told the appellant to stop and that it hurt. The appellant got off him and laughed.

17. Shortly after Count 5, John complained to a large number of people about the appellant’s conduct. He was interviewed by police on 5 and 12 March 2012. There is no need to set out John’s evidence in detail. It is not relevant to the ground of appeal.

The “lookout incident”

18. John described the lookout in his JIRT interview of 12 March 2012 in these terms:

“Q33 Do you remember when was that trip to Melbourne?

A It was at two years ago [sic].

Q34 Ah hmm.

A Two years ago during school holidays.

Q35 O.K. Yeah.

A And, um, we were like, I think we were coming back from Melbourne and we stopped at this café and um, at this point I like, started realising all this stuff and, um, we were just like, looking, we were at…lookout near the café and, um, and, um, I was just like, um, like we were all just chatting…um, suddenly he just came out of nowhere and just like, um, he just grabbed my penis and I was like, I got really, like, I didn’t, it just like, um, I just heated up and, um, at that point I, um, I just started punching him.

Q36 Ah hmm.

A And I told him, to get lost and then the whole family was there and they were just like, yeah, they were just like, what the hell is going on and stuff and…yeah, he just like, everything just came out of nowhere and he just like, grabbed me and then I was, um, my instant reaction was just, I just started hitting him.”

19. John gave further details later in his interview as follows:

“Q79 O.K. So you said that you went to the lookout near the café.

A Yeah.

Q80 Tell me more about that?

A Well we originally stopped to have a just to have a coffee -

Q81 Ah hmm.

A – but then my parents like, we were just roaming around in front of the lookout and it was looking out to some mountain and we all just looked relaxing and looked at the mountains. Then, um, then he just randomly came near me and then just, um, grabbed my, ah, penis and, ah, then my instant reaction like, I just had a, I just got angry and then started hitting him in the arm, in the chest and then he like, backed off a bit and he kind of, like, I remember he was like, smiling at first and then he like, ah, then he kicked me, you know, like, I moved, like, I just moved and he missed and then I just started hitting him again and that’s when my dad like, I think it was my dad or my mum just pulled me away.”

20. John was cross-examined about this evidence. He explained that the touching of his penis was over his clothing and that the appellant and he were facing each other and the appellant was in front of him. It was suggested to him that he had been “excited” during that holiday and had been hitting everybody, including the girls. He said that he could not remember hitting any girls. He was shown some video footage that depicted him stating that he promised not to hit the girls anymore. It was put to him that he kicked the appellant because he was in a bad mood. John denied this.

21. A number of other witnesses gave evidence of the lookout incident.

22. John’s mother gave evidence that in the September school holidays in 2009 her family, the appellant’s family and a third family drove in three cars to Melbourne. When they were on Phillip Island she heard that there had been an incident between the appellant and John and she told John to apologise for “lashing out at him”.

23. John’s father gave evidence that he, the appellant and the other friends were having a coffee and gathering around when:

“[John] came from somewhere. I did not notice where was, I think around the other side, and started punching…[the appellant]. So then I jump in the middle and try to stop, and he just keep punching and some yell ‘Stop’ and then others try to – as a father I was trying to [John] punished or something. So [the appellant] jumped and said, “No, no, no, we’re having a small joke,’ something like that, but it was stopped from there, so he didn’t have time to mention what was the problem. Then we went back to our holiday house, then my wife came to [John] to say sorry to [the appellant] then [John] say, ‘Why should I say it to him?’ So this was years ago.”

24. In cross-examination John’s father denied that John’s behaviour had been difficult during that holiday. He also denied that John had hit him and he could not remember John hitting anyone else.

25. A Buddhist monk gave evidence that he travelled with the families to Mt Dandenong in 2009. He said that he observed an incident between John and the appellant in which John kicked the appellant. The appellant then smiled and walked “down”. He told John that it (that is, kicking an adult) should not be done and both the appellant and John’s mother said that it was a joke. In cross-examination he said that he did not see anything other than John kicking the appellant, but that he was not paying any “special attention”.

26. Another member of the group from the third family gave evidence that was he was on the holiday to Melbourne but did not see anything unusual happen at the lookout.

27. Another witness gave evidence that he was also on the holiday. He gave evidence that he was having tea when he heard a shout and then:

““I heard a shout, not a big shout, and – there was a shout, and I go back, see back, so I saw [John] pull up the [the appellant], then [John’s father] went to there. They talk but I didn’t listen to that. I didn’t hear.”

28. He was later told something about the incident by John’s father.

29. John’s sister gave evidence. Her evidence in chief was by way of recorded interview. She said nothing about the lookout incident in her evidence in chief. She was on the trip to Melbourne. In cross-examination she stated that she did not remember John punching her on that trip. She did not recall him saying “I promise not to hit girls anymore.” She was shown the video but could not recall it being made. She agreed that John was “hyperactive” on that trip but said that the only person whom he punched was the appellant.

Witnesses for the defence

30. The appellant participated in an ERISP in which he denied all offences. In relation to the lookout incident, he stated:

“Q127 And do you recall that you and [John] became involved in a physical fight?

A No I mean we always box and fight…friendly.

Q128 Yeah. This one wasn’t friendly.

A No, I can’t remember.

Q129 Do you recall that…[John’s]…dad had to break you two up from a fight?

A No.

Q130 OK.

Q131 The allegation in relation to that incident is that you were at a lookout. Do you remember being at a lookout at one of the rest stops?

A We went to a…couple of lookouts.

Q 132 And at one of the lookouts, you touched [John’s] penis.

A Rubbish.

Q133 And he’s responded by pushing you.

A Absolute rubbish. I’m not such a person to do that on holidays, travel, rubbish…”

31. The appellant did not give evidence at his trial, but he called a number of witnesses in the defence case. His wife and eldest daughter gave evidence about the lookout incident.

32. The appellant’s wife gave evidence that John was “misbehaving, mischievous from the beginning” of the holiday. He hit her daughter and his sister. She also saw him hit the appellant at the Dandenong lookout. She said that John jumped on the appellant “from the back”. She was close by to her husband when it happened. She did not see her husband make contact with John before John hit him.

33. In cross-examination, she stated that John laughed after he had jumped on her husband’s back. She said, “He [the appellant] was in pain. Like a big hit, that was a big hit.” When asked whether it was a friendly or playful hit, she said, “I don’t know. He hold his back and turn around and [John] was laughing.” When asked whether the appellant appeared to be hurt, she replied, “I think so, yeah, because he jump – when he – when he punched, you know, it’s very hurt, painful…he was holding his back.”

34. The appellant’s eldest daughter gave evidence that John was not well behaved on the trip. She said, “He would punch people, he would punch me in the arm or in the stomach, push people around. He was very hyperactive.” She also gave evidence that John had similar physical contact with his sister and father. He was “bratty” to his mother. She described what John did to her father as follows:

“We were at the Dandenong lookout and what I saw was I heard a noise from my father and when I turned around I saw [John] coming off the rear of my father and he was – my father was bent over with his arm on his back and he looked to be in pain.”

35. She stated that John just laughed and “came back to the kids”. She made a video recording of John on that holiday after John had hit his sister (Exhibit 4). She gave evidence that John would laugh after he hit his sister. She said that it hurt when John hit her, but that it only encouraged him to do it more if she told him that it hurt.

Objection is taken to the evidence at trial

36. The Crown served a tendency notice pursuant to s 97 of the Evidence Act prior to the commencement of the trial. The notice sought to rely on two uncharged acts: the evidence of the “lookout incident” as well as an incident described as the “Roselea” incident.

37. On 3 August 2015, during the hearing of the application to rely upon the tendency evidence, the Crown Prosecutor withdrew reliance upon the evidence as tendency and instead proceeded on the basis that the evidence was admissible as “context” evidence only.

38. It was submitted to Hoy DCJ that the evidence was relevant to meet any suggestion that the conduct came “out of the blue”. That is, that it commenced when the complainant was 10 to 11 years old and then did not start again until he was 14 or 15 years old.

His Honour’s decision at trial

39. His Honour declined to permit the Crown to rely upon the “Roselea” incident but ruled that the evidence of the “Melbourne incident” (which I have called the “lookout incident” in this judgment) was admissible. His Honour found:

“The Crown submits the evidence of this incident, which is identified as occurring in October 2009, gives appropriate context and, in particular, a sense of continuity between the first and second tranches of substantive counts. It is submitted that without the evidence a jury may well be left with an unrealistic and/or misleading picture as to the two series of apparently unconnected indecent assaults committed upon the complainant.

The Crown further identifies or submits that the age of the complainant varies significantly between the first two tranches, that is, in the first series when he was ten or 11 and the second when he was 14 and/or 15.

The evidence is that the Melbourne incident occurred when he was about 13 years of age. The Crown submits there is some similarity between the conduct constituting the context evidence, that is, the grabbing of the complainant’s penis with that alleged in count three, previously count 4, and count five, previously count 6.

It is also submitted that the complainant’s reaction to the accused’s alleged conduct in grabbing the complainant’s penis by punching and/or kicking him also provides some background as to his resistance to the approach made by the accused subsequently in count four, previously count five, and his behaviour as observed by his sister and revealed in her recorded interview…where she relates his reluctance to see or be with the accused.”

40. His Honour then referred to the decisions of this Court in Qualtieri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95 and DJV v R (2008) 200 A Crim R 206; [2008] NSWCCA 272. It was noted that the Crown relied upon the recent authority in KJS v R (2014) 86 NSWLR 603; [2014] NSWCCA 27. His Honour extracted [28] of the decision of McClellan CJ at CL (as his Honour then was) in DJV v R and [80] of the decision of the Chief Judge in Qualtieri v R and went on to state the following:

“I have carefully considered these principles against the background of the circumstances alleged in the submissions of both Crown and Mr Brassil on behalf of the accused. The proposed evidence, in my view, does provide context to the complainant’s allegations and whilst dealing with relationship evidence it was stated by the New South Wales Court of Criminal Appeal in Norman v R [2012] NSWCCA 230 at paragraph 26:

“In other words, relationship evidence may be admitted on the basis that without it the jury would be faced with a seemingly inexplicable or fanciful isolated incident. To enable complainants to give their account of events comprehensively they must be permitted to place the incidents of which they complain in a meaningful context.”

It seems to me that this supports the admission of the proposed context evidence. Furthermore, in coming to this view, I am mindful that there was always a risk of confusion in that a jury may apply tendency reasoning to the proposed context evidence. I propose to address that risk by way of careful direction and specific warning against tendency reasoning.

Overall, I have carefully considered all the material, relevant principles, and for the reasons stated by the Crown, the proposed evidence is of significant probative value. If accepted, it could well rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. It provides a link by way of context between the two tranches of alleged offences. There is considerable specificity, albeit with some variation between the Crown witnesses as to the allegation, that is, what it comprised of, its timing and location.

I accept there are a number of witnesses who provide differing accounts and to [sic] and/or surrounding the incident and reaction. There is also some other evidence from the civilian witnesses which is different to that stated by the complainant in his recorded interview, particularly as to his reaction and the alleged occurrence. This can, and presumably will, be subject to challenge on behalf of the accused

Contrary to the submissions on behalf of the accused there does not appear to me to be any particular complexity as to the evidence proposed to be adduced. There remains considerable scope for challenge and/or cross examination. There does not appear to me to be any danger of unfair prejudice arising from the adducing of this evidence on the limited basis proposed and again I emphasise so as to ensure fairness to the accused, there should be clear and proper direction given to the jury both when the evidence is given by the complainant and subsequently in summing-up at the conclusion of the evidence, so as to emphasise the limited basis upon which the evidence has been admitted.”

Directions to the jury

41. As foreshadowed in his ruling on 5 August 2015, Hoy DCJ gave the jury a number of directions as to how they were entitled to take the evidence of the lookout incident into account.

42. On 6 August 2015, after John’s pre-recorded interview was played to the jury as his evidence in chief, Hoy DCJ directed the jury about the edits to the DVD played to them and then stated:

“The second thing I want to mention to you is you’ll recall in that particular interview there was reference made to an alleged incident occurring at a lookout in Victoria where there was an alleged touching of the penis of the complainant at a lookout. You’ll recall from the Crown opening to you that does not constitute one of the charges preferred against the accused. You might recall from the Crown opening that the Crown referred to details that he anticipated would come out regarding the alleged offences which are on your MFI 1, but he also indicated to you that he expected to hear some evidence regarding an incident alleged by the complainant as having occurred at a lookout in Victoria.

You must appreciate that that is there just to give you an indication on behalf of the complainant in the Crown case of another act of alleged misconduct that can be conveniently referred to as another act. It is not proposed as an offence relied upon, it is put to you for the purpose of putting the complainant’s evidence into I guess a realistic and intelligible context surrounding the various alleged offences. By context I mean the history of the conduct alleged between the accused and the complainant. The Crown submits to you, I anticipate, that this is there to give you a sense of continuity with regard to the interactions between the complainant and the accused as alleged by the complainant.

Without that information about the alleged incident it is submitted that you may be left with an unrealistic or misleading picture as to the relationship between the two series of offences. You’ll note from the indictment, the copy that is in front of you, that there is a gap between the first three charges and the last two charges, and you might well appreciate that therefore Crown adduces this just as to an incident to put them in the overall context. It’s important that you appreciate that, it’s put forward to you so as to assist you perhaps from wondering why there might be isolated acts occurring without any particular reason or circumstance to link them. So if you hadn’t heard the evidence about that particular alleged misconduct, you may have thought the complainant’s evidence was otherwise less credible.

So it’s just there to assist you in answering any possible questions that might arise in your mind about the particular allegations. It puts the allegations in a wider context, relating to what is alleged to be the ongoing history between the complainant and the accused. It’s to avoid any artificiality or unreality in the presentation of the evidence of the complainant. That is why the Crown is permitted to lead that evidence, albeit it is a matter for which there is no charge, but is an allegation that is put forward in the overall evidence by the complainant.

Can I emphasise that you must not use that evidence as establishing any sort of a tendency on behalf of the accused to commit offences of that nature. You cannot use it on the basis just because this may have occurred that he therefore committed the other matters that are alleged. All must be before you in the proper context about which I have directed you earlier, and that is certainly not the reason why the Crown has that evidence before you. It is before you for a very limited purpose, and cannot be used for any other purpose whatsoever, particularly having regard to the particular allegations which of themselves must be proved beyond reasonable doubt. You cannot substitute that evidence for the evidence of the other acts alleged as comprising those in the indictment. So it’s very important that you understand that, you must not reason in any way that just because the accused may have done something wrong there or on some other occasion that he may have done that which is in the alleged indictments. So that’s just an important direction that I give you at this stage because that evidence has been adduced.”

43. After his Honour gave this direction, counsel for the appellant made an application that the jury be discharged because the direction suggested that the lookout incident had in fact happened. His Honour declined to discharge the jury, but when the jury came back into court he added the following further clarification:

“Sorry to delay you ladies and gentlemen there was just this matter I had to deal with and entirely my fault but I apologise for delaying you. Look there’s just something I want to say to you about my earlier direction regarding that evidence concerning the alleged Victorian lookout incident. So there be no misunderstanding that evidence was as to the alleged Victorian incident was allowed albeit, it is not the basis of a charge, as, as it were context evidence. You’ll recall earlier I described how it was placed to put the other matters on either side in a realistic context. It is, as with the charges merely an allegation and you must consider that evidence as regarding the allegations and that particular allegation as to the Victorian lookout incident as a part of your fact-finding process, that’s entirely in your consideration to consider it.

The reason that I gave you a direction as I did at the time it was given was to ensure that you fully understand the limited purpose for which that evidence was allowed to be led, recognising it did not relate to any alleged charge that is relied upon by the Crown. It is, however, merely an allegation in the evidence of the complainant. So please that that on board.”

44. During his closing address, the Crown Prosecutor told the jury:

“If you do accept the complainant’s version that [the lookout incident] did occur, then you can take it into account to put matters in context. The main relevance of that is to give some context between the first three counts taking place in 2006 and 2007, to the fourth and fifth account [sic] occurring at a substantially later point in time, 2011 and 2012. That the October 2009 incident on the trip to Victoria is relevant to giving some context to the matter when looked at in total, and to the complainant’s attitude towards the accused.”

45. In his closing address, counsel for the appellant described John was “mischievous”. He said that, “…in my submission to you the context is not of a serial interference by this accused with that complainant but of serial misbehaviour by that complainant to people around him.”

46. During his summing-up his Honour instructed the jury:

“There is also in the Crown case, which was permitted, evidence concerning an alleged incident at what has been described as the lookout, or the Victorian lookout incident. Why so? It allegedly took place on this multi-family trip down to Victoria. I will emphasise again a little later when I return to this that the Crown was only permitted to adduce this evidence of the alleged misconduct so as to put the complainant’s overall evidence as to the alleged incidents on the indictment and thus constituting charges, into context, that is, a realistic and intelligible context.

The evidence of this allegation, the lookout incident, does not constitute a charge. The Crown is not prosecuting nor alleging a charge based on that information. It is merely put before you and I will emphasis a little later with specific direction, as I did when you heard the evidence. You will remember I interrupted before things continued and advised you as to the limited basis for that material being before you. The evidence of this came from the complainant, as described in the recorded interview again.

[His Honour then described the evidence]

The Crown has also called evidence from other people present on this trip at the lookout as to what they saw. None of them saw or described the alleged misconduct by the accused. I will go into some detail a little later as to what they say they did see, but none of them gave any evidence of seeing the alleged misconduct. When I say that, the sexual misconduct, the grabbing of the penis or the crotch, however it may be described.”

47. His Honour drew the jury’s attention to the fact that none of the Crown witnesses saw the sexual misconduct described by the complainant on that occasion.

48. Later in the summing-up, after his Honour had summarised John’s evidence of the lookout incident, his Honour stated:

“Crown has…called evidence from others who were present at that lookout or in the area. None of them saw the misconduct that is alleged by the complainant. In short, evidence was called from [John’s mother]…she was aware of the incident, however said it was at Phillip Island…She had only heard about it and spoke to her son, telling him to apologise to [the appellant] for lashing out at him.”

49. His Honour went on to summarise the evidence of all of the other witnesses who gave evidence in relation to the lookout incident. After summarising all of this evidence, his Honour gave the jury a warning as to how the evidence could be used. It is somewhat lengthy, but, given that this appeal concerns whether the appellant’s trial miscarried due to the admission of this evidence, I consider it necessary to set out the warning in full:

“It is important, that evidence, that I tell you the relevance of the evidence as to this alleged other act. It was admitted solely for the purpose of placing the complainant’s evidence towards proof of the charges into what the Crown says is a realistic and intelligible context. By “context”, I mean the history of the conduct by the accused towards the complainant as he alleges it took place. The Crown submits that this is to give you a sense of continuity with regard to the interactions between the complainant and the accused as alleged by the complainant, remembering that this alleged other act is said to have occurred in 2009, October 2009, and of course, counts 1, 2 and 3 are alleged to have occurred, 1 and 2, 30 June 2006 to 30 June 2007, and number 3, 1 January 2007 to 30 June 2007.

This contextual lookout “other act” allegation, October 2009 and then we have the second or the last two counts on the indictment, count 4 1 January 2011 through to 16 December 2011, then the final count 5, 27 January 2012. Without the evidence of this other act, the Crown says you may wonder, for example, about the likelihood of apparently isolated acts occurring suddenly without any reason or circumstance to link them in any way. As you can see and as I have identified, there is a gap between the first three charges on the indictment and the last two charges.

If you had not heard about the evidence of this other act, you may have thought that the complainant’s evidence was, thus, less credible because it was less understandable. That evidence has been placed before you for you to answer questions that might otherwise arise in your minds about the particular allegations in the charges as alleged in the indictment. The evidence has been allowed to assist you in answering any possible questions that may have arisen in your minds about the particulars of the allegations. It puts the allegations in a wider context, relaying what is alleged to be the ongoing history between the complainant and the accused. It is avoid any artificiality or unreality in the presentation of the evidence from the complainant and provides a link between charges 1, 2 and 3 and the latter two.

The complainant’s account of this alleged other act by the accused allows him to more naturally and intelligibly explain his account of what has allegedly taken place. The Crown can thus lead that evidence of this alleged other act, its sexual nature between the accused and the complainant, to place the particular charges in the context of the complainant’s account of the whole of the accused’s alleged conduct. I must however give you very important directions or warnings regarding the use of this evidence as to this alleged other act, the lookout incident.

This evidence when it was adduced I emphasised firstly, you must not use the evidence of this other act as establishing a tendency on the part of the accused to commit offences of the type charged. You cannot act on the basis that the accused is likely to have committed the offences charged because the complainant has made another allegation against him. That is not the reason the Crown has placed this evidence before you. The evidence has a very limited purpose, as I have explained, and it cannot be used for any other purposes or as evidence that the particular allegations contained in the charges have been proved beyond reasonable doubt.

Secondly, you must not use the evidence of this alleged other act for the evidence of the specific allegations contained in the charges in the indictment. The Crown is not charging a course of misconduct, but has charged particular and specific allegations arising in what the complainant says was as course of sexual misconduct. You are concerned with the particular and precise occasion alleged as to each of the charges within the indictment. You must not reason that just because the accused may have done something wrong to the complainant on some other occasion, he must have done so on the occasions or the occasions alleged in the indictment. You cannot punish the accused for this other act attributed to him by finding him guilty of a charge or charges in the indictment. Such a line of reasoning would amount to a misuse of that evidence and would not be in accordance with the law or my direction as to it.

I have spent some time describing this evidence before you in the Crown case as to this alleged other act. The only person who alleges the touching of the penis is of course the complainant. The other witnesses that were called did not see any such thing. They gave evidence of what they perceive to be the fracas and none of it appeared to them to emanate from any act of sexual misconduct. Three witnesses or more, I think, attest to this and another saw absolutely nothing. It is, of course, a matter to you what weight you attach to that evidence as compared to the allegation that is made by the complainant.”

50. No complaint was made about this direction at trial or in this Court.

Submissions on behalf of the appellant

51. Mr Bellanto QC submitted that the trial judge erred in two ways. First, by finding that the evidence was relevant as context evidence and, second, by failing to exclude the evidence pursuant to ss 135 or 137 of the Evidence Act. It was submitted that the Crown’s reliance upon the decision in KJS v R was misplaced because the facts in that case were very different. The Court stated in that case that context evidence can be relevant on a number of bases, but none of them was present in this matter. Reliance was also placed on the decision in R v Young (1996) 90 A Crim R 80, where it was held that a single incident cannot provide meaningful context.

52. It was further submitted that, contrary to the submission of the Crown, the evidence was not needed to explain why the complainant rolled away from the appellant immediately prior to Count 4.

53. In circumstances where the evidence did not fit into any of the accepted bases on which context evidence is permitted to be adduced, it was submitted that the evidence was in fact relevant as tendency evidence despite the fact that the Crown did not rely upon it on that basis.

54. It was noted that this Court observed in Norman v R (at [35]) that, where evidence of uncharged acts is led without a need to place the charged acts in a meaningful context, “…it is difficult to see what, if any, use the jury could have made of the evidence other than to engage in impermissible propensity reasoning.”

55. The appellant’s second complaint was that, even if the evidence were admissible, it should have been excluded under s 137 of the Evidence Act. It was submitted that the trial judge failed to take into account a material consideration; namely, that the isolated and remote nature of the context evidence was such that its probative value was low. This is in contrast to what occurred in KJS v R. The appellant submitted that the trial judge did not consider the remoteness of the evidence in circumstances where there was a gap of at least two years and four months between Count 3 and the context evidence and a further gap of at least one year and two months between the context evidence and Count 4.

56. It was further submitted that the trial judge failed to take into account the variance in age and similarity in conduct. This was said to be an error as the only purpose for context evidence is to address some fact in issue, not to bolster the evidence of a witness.

Submissions on behalf of the Crown

57. The Crown relied upon the decisions in KJS v R and DJV v R. It was submitted that, on the basis of these authorities, the trial judge was correct to find that the gap in the offending conduct was relevant to the jury’s consideration. This was so for two reasons. First, without the context evidence, the first and second tranches of offending would potentially have been separated by a period of three years and six months. In this regard, the jury may have considered the second tranche of offences to be relatively isolated in time and thus harder to believe in the absence of the context evidence. Second, it was submitted that the context evidence places the two sequences into a more understandable chronology of events.

57. It was further submitted that, although the context evidence alleged in KJS v R was more frequent and “habituating”, the essential issue in the appeal was that there would have been a gap in the charged conduct without an explanation had the context evidence been excluded. It was submitted that the reference in R v Young to the incapacity of one act to constitute context evidence should be limited to the facts of that case, in which a single incident preceded the charged conduct.

58. It was submitted that there was no error in the trial judge’s failure to exclude the evidence pursuant to s 137 of the Evidence Act. The principal matter considered by his Honour was the time gap between the two sequences of offences.

59. As for his Honour’s finding (extracted about that [40]) that he proposed to give clear and proper directions to the jury as how the evidence could be used, it was submitted that his Honour did in fact do this. The Crown Prosecutor placed reliance on that portion of his Honour’s summing up extracted above at [49] and submitted that the evidence of the other witnesses pertaining to the lookout incident undercut the complainant’s evidence and accordingly his credibility.

Consideration

61. The determination of this appeal turns on whether the appellant’s trial miscarried due to the admission into evidence of the “lookout incident”. As McClellan CJ at CL observed in DJV v R (at 210 [10]):

“This case again raises the difficulties in relation to evidence of other allegedly criminal acts or inappropriate conduct by a person accused of a criminal offence.”

62. I turn first to consider the appellant’s primary submission that the evidence was not relevant. If indeed the evidence was not relevant, that would be the end of the matter. As Gleeson CJ, Gaudron, Gummow and Hayne JJ stated in Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 at (653 [6]):

“Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise.”

63. Section 55(1) of the Evidence Act relevantly provides:

“(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”

64. The trial judge was satisfied that the evidence of the lookout incident was relevant as context evidence. In so finding, his Honour relied upon a number of decisions of this Court concerning the admission of context evidence. Those decisions included KJS v R, Qualtieri v R, DJV v R and Norman v R.

65. Consistent with the principles derived from these decisions, evidence of uncharged acts, such as the lookout incident, is potentially admissible to place the specific allegations in the indictment into context. But the particular evidence must go to an issue that has either arisen or will arise in the trial. It is not sufficient for the Crown simply to rely on all allegations made by a complainant that are not included in the indictment; the evidence must be capable of rationally affecting the probability of the existence of a fact in issue in the proceedings.

66. His Honour extracted portions of the decision of McClellan CJ at CL (as his Honour then was) in DJV v R as follows (at 216 – 217 [28]):

“Whatever be the position under the common law, the accepted position in New South Wales is that evidence of ‘relationship’ may be admitted unless excluded after consideration has been given to s 135 or s 137 of the Evidence Act...However, it will only be admissible if it is relevant because it may assist in the evaluation of other evidence going to a fact in issue.

…

Unless the other evidence in the trial and the issues which it raises make it relevant to prove the ‘context’ in which the alleged offence or offences occurred, it will be almost inevitable that the discretion should be exercised to exclude the evidence.”

67. Although the trial judge did not expressly refer to [36] of DJV v R, it is to be noted that McClellan CJ at CL there observed:

“It is correct that each of the events if true forms part of the ‘relationship’ between the appellant and the complainant. But that is not the touchstone for admissibility. There must be an issue in relation to the charged act or acts which justifies the admission of evidence of other events including other occasions of sexual abuse. Unless there is such an issue the evidence of other acts is likely to only be admissible, if at all, as tendency evidence.”

68. The trial judge also extracted paragraph [80] of the judgment in Qualtieri v R in his reasons. In summary, that paragraph sets out the steps to be taken when considering the admissibility of evidence of this nature. The first step is to identify the evidence and the purpose of the tender. If the evidence is not relied upon as tendency evidence but only as context evidence, then “it is first necessary to consider whether any issue has been raised in the trial which makes that evidence relevant.” The judgment goes on to state:

“If admitted the trial judge must carefully direct the jury both at the time at which the evidence is given and in the summing up of the confined use they may make of the evidence. They should be told in clear terms that the evidence has been admitted to provide background to the alleged relationship between the complainant and the accused so that the evidence of the complainant and his/her response to the alleged acts of the accused, can be understood and his/her evidence evaluated with a complete understanding of that alleged relationship. The jury must be told that they cannot use the evidence as tendency evidence.”

69. The trial judge also had regard to the decision in Norman v R. That appeal concerned the admission of evidence of (non-sexual) domestic violence for the purposes of showing the relationship between the appellant and the complainant. Macfarlan JA (with whom Price and McCallum JJ agreed) observed at [26], in a passage also extracted by the trial judge in his reasons:

“…relationship evidence may be admitted on the basis that, without it, the jury would be faced with a seemingly inexplicable or fanciful isolated incident. To enable complainants to give their account of events comprehensively, they must be permitted to place the incidents of which they complain in a meaningful context.”

70. His Honour also cited the decision in KJS v R in his reasons, although he did not extract any of it. That decision concerned an appeal from convictions on two counts of sexual assault upon a child, one offence said to have occurred in 2003/2004 and the other in 2009. Context evidence was adduced of conduct on the part of the appellant before Count 1 and between Counts 1 and 2. This evidence included the appellant getting in the bath with the complainant, similar assaults to those on the indictment and attempts to assault the complainant that did not occur because, when her mother was home, the complainant would tell the appellant loudly to get out of the room. The evidence was that the assaults were occurring almost every night closer in time to Count 2. The appellant submitted that the evidence was clearly being used as tendency evidence and should have been dealt with pursuant to ss 97 and 101 of the Evidence Act or excluded under s 137 of the Evidence Act

71. In KJS v R, Hoeben CJ at CL identified at [34] a number of ways in which the evidence adduced was relevant as context evidence. Those bases were: to demonstrate a process of habituating the complainant to physical contact with the appellant so that Count 1 did not appear to have suddenly occurred, to better explain Count 1 and explain why the complainant did not resist, to place Count 2 in context so that it could be seen as the continuation and culmination of a consistent course of conduct over a period of years, rather than as an isolated attack, and to provide some explanation for the failure of the complainant to complain.

72. It is to be accepted that none of the bases upon which the context evidence was identified by Hoeben CJ at CL at [34] in KJS v R as being relevant was present in this matter. Although the appellant relied upon this fact in support of his contention that the lookout evidence was inadmissible, I do not take Hoeben CJ at CL to be identifying the only bases upon which context evidence can be relevant and admissible, but rather merely the bases for relevance in that matter. His Honour went on to observe at [38]:

“There is another way of looking at the evidence which strengthens the conclusion that it was properly characterised as context evidence. Were the evidence to have been excluded, the jury would have been left with an unrealistic and entirely misleading picture of two apparently unconnected sexual assaults, separated in time by some three or so years, which occurred in startling isolation.”

73. The most common situation in which context evidence arises is to explain a failure by the complainant to complain about the offending conduct. That common scenario arose in R v Wickham (unreported, Court of Criminal Appeal (NSW), 17 December 1991). Gleeson CJ (with whom Crennan and Kiefel JJ agreed) cited R v Wickham in HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16 (at 352 [6]) as a classic example of relevant context evidence. In that matter, the allegation was that a child’s father got into bed with her one night, had sexual intercourse with her and they then both went to sleep. There was evidence of similar activity beforehand and the child said that it was a “common occurrence”. Clearly, if the child had not been able to give evidence of what had happened beforehand and that it was a common occurrence, the jury would have gained the false impression that the sexual intercourse was an isolated incident and wondered why she did not react differently to what occurred.

74. The fact that most of the decisions concerning context evidence involve cases where the evidence explains matters such as a lack of complaint and/or general “grooming” of a child complainant does not mean that context evidence is necessarily confined to such cases. The statements of principle derived from the decisions upon which the trial judge relied do not limit the admission of context evidence to the facts in those cases. Rather, those statements of principle confirm that the evidence, if relevant, is admissible, subject to any consideration of s 137.

75. The trial judge’s reasons disclose that his Honour clearly had regard to the steps identified by this Court in Qualtieri v R. His Honour first identified the evidence. He then explained how it was relevant; namely, to provide a link between the two tranches of alleged offences. He noted that the lookout incident occurred mid-way between the two periods of time. His Honour observed that, if the evidence were not before the jury, they would have been left with an unrealistic or misleading picture as to the two series of apparently unconnected events. His Honour also referred to the fact that there was “considerable specificity” in relation to the evidence, although the eyewitnesses differed as to what in fact occurred. Consistent with the authorities to which his Honour referred, his Honour was satisfied that the lookout incident was relevant.

76. It is to be accepted that the context evidence in the other cases upon which his Honour relied, and in particular KJS v R, was evidence of acts that occurred with far greater frequency than the isolated act here. It does not follow that the evidence was thus not relevant to a fact in issue at the trial.

77. I am not satisfied that the decision in R v Young, relied upon by the appellant, is authority for the proposition that one incident alone is incapable of being relevant as context evidence. That decision is distinguishable on its facts. It is a decision of the Victorian Court of Appeal in 1996 prior to the enactment of the Uniform Evidence Act in that State. A child, referred to in the judgment as “H”, visited the appellant with other boys on a number of occasions. On the first occasion, H returned to collect his bag after the boys left. The appellant then kissed him whilst rubbing his genital area against him. H later went to the house again, at which time the appellant pinched him on his buttock. H visited him a third time, after which the appellant offered to drive him and another boy, “S”, home. When they entered the vehicle, which was a panel van, S sat in the front and H in the back. The appellant lay on H thrusting his pelvis at him.

78. The first of these three incidents was not charged in the indictment. It was admitted as evidence of “guilty passion” and to provide evidence “of the setting and circumstances which led to the later visits by H”. The Court held that the evidence was not capable of proving “guilty passion” or “any kind of relevant relationship” and nor could its admission be justified “…as part of the necessary narrative to give context to those later events” (at 88-89). These observations were made on the facts in that case and do not stand as authority for the proposition that one uncharged act can never be admissible as context evidence.

79. It is to be accepted that, as a general rule, the Crown faces a significant hurdle in establishing that one act, rather than multiple acts, is capable of meeting the threshold test of relevance as context evidence. But the evidence of the lookout incident was somewhat unusual. It was not confined to a bare allegation of one uncharged act made by a complainant in similar terms to the matters charged in the indictment. Rather, it was said to have been immediately followed by an act of physical assault by the child on the alleged offender witnessed by a number of other persons. Thus it can be seen that its probative value was in a very different category to that in R vYoung.

80. The appellant did not dispute the evidence of what occurred immediately after the alleged indecent assault at the lookout, although the evidence as to the precise circumstances of John’s assault on the appellant differed as between the various eyewitnesses. The evidence of the appellant’s wife and daughter was that John assaulted the appellant by hitting his back, John and his father described John hitting the appellant, and the Buddhist monk described it as a kick. The appellant disputed only the brief touching of the child’s penis that was alleged to have precipitated the assault. On the defence case, John was simply misbehaving. On the Crown case, John’s behaviour was consistent with animus towards the appellant. The jury may well have considered that it would be unusual for a child to assault an adult, who was a family friend, for no reason. I am satisfied that the evidence of the physical assault was relevant on its own in any event, in addition to being relevant as part of the surrounding circumstances of the allegation of the indecent assault at the lookout.

81. The nub of the appellant’s complaint is that the evidence was only relevant as tendency evidence and thus should not have been admitted at the trial. It is to be accepted that if there was no other basis for the admission of this evidence than as tendency evidence, then it was wrongly admitted. I have already stated that I am satisfied that the evidence was relevant as context evidence for the purpose identified by the trial judge. No error has been identified in his Honour’s reasoning in this regard. Although I also accept that the evidence is capable of being relevant as tendency evidence, this does not assist the appellant’s argument in circumstances where I am satisfied that the evidence is also relevant as context evidence. It is a matter for the prosecution as to how they wish to rely upon evidence in its case. In this matter, in the exercise of prosecutorial discretion, the Crown elected not to adduce the evidence for a tendency purpose.

82. “Tendency evidence” is defined in the Dictionary to the Evidence Act as meaning “evidence of a kind referred to in section 97 (1) that a party seeks to have adduced for the purpose referred to in that subsection” [emphasis added]. That is, it is defined by the purpose for which it is tendered: L'Estrange v R [2011] NSWCCA 89 at [59]. The Crown did not seek to have the evidence adduced for a tendency purpose, thus the fact that it was capable of constituting both tendency evidence and context evidence does not mean that it was wrongly admitted.

83. There will no doubt be many cases in which the Crown relies upon similar incidents, which are not included in the indictment, as context evidence when the same evidence is also capable of being relevant as tendency evidence. It is for that reason that this Court has held that, in such cases, the trial judge is required to give a direction that the evidence cannot be relied upon in that way, as the trial judge did in this case (see [80] in Qualtieriv R extracted above at [68]).

84. The appellant relied upon extracts from the transcript of the oral argument concerning the admissibility of the evidence on 3 and 4 August 2015 in support of an argument that the Crown did in fact rely upon the evidence for a tendency purpose. Even if that were to be accepted, there are three difficulties with that submission. His Honour did not admit the evidence on that basis, his Honour found that it was relevant on another basis (namely, context), and his Honour gave a direction not to use the evidence as tendency evidence.

85. I am not satisfied that the trial judge erred in concluding that the evidence of the lookout incident was relevant to a fact in issue at the trial.

86. I turn then to consider whether the trial judge erred in not excluding the evidence under s 137 of the Evidence Act. I have already extracted his Honour’s reasons for not doing so at [40] above. Section 137 of the Evidence Act provides that:

“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

87. “Probative value” is defined in the Dictionary to the Evidence Act as:

“The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

88. As the High Court confirmed in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, assessment of probative value for the purposes of s 137 does not require evaluation of the credibility, reliability or weight of evidence, those being matters properly left to the jury if the evidence be admitted. The approach of this Court confirmed by the High Court in IMM v The Queen is that contained in R v Shamouil (2006) 6 NSWLR 228; [2006] NSWCCA 112 and R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121.

89. “Unfair prejudice” in the context of s 137 has been held to mean a real risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 (at 325 [91]). As Mason P observed in Colby v The Queen [1999] NSWCCA 261 at [97] (citation omitted):

“The focus is upon the danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case.”

90. In applying s 137 of the Evidence Act, the trial judge was required to balance the extent of the capacity of the evidence to support particular factual findings against the danger of unfair prejudice to the accused.

91. The terms of s 137 are mandatory: a judge “must refuse to admit” the evidence after making the evaluative judgments concerning the probative value and prejudicial effect of the evidence. The court is not exercising any discretion when applying the section. Despite this, a number of decisions of this Court have described the judicial act as being analogous to the exercise of a discretion, such that a ground of appeal asserting error in the application of s 137 is to be governed by the principles in House v The King (1936) 55 CLR 499.

90. In Vickers v the Queen (2006) 160 A Crim R 195; [2006] NSWCCA 60, Simpson J (as her Honour then was) (with whom James and Hall JJ agreed) observed at 210 [76]:

“The question under s 137 involves an evaluation, the result of which dictates whether the evidence is or is not admissible. That evaluation too, may only be reviewed on the principles stated in House.”

93. In R v SJRC [2007] NSWCCA 142, James J (with whom Rothman and Harrison JJ agreed) observed at [34]

“However, for the purposes of an appeal, an application of s 137 is to be regarded as analogous to the exercise of a discretion and, therefore, can be reviewed by an appellate court only in accordance with the principles stated in House v The King (1936) 55 CLR 499 at 504-505. See R v Blick at 333 [19], Vickers v Regina (2006) 160 A Crim R 195 at 210 [76].”

94. In Can v The Queen [2007] NSWCCA 176, James J (with whom Giles JA and Harrison J agreed) stated at [43]:

“The ruling made by the trial judge in applying s 137 of the Evidence Act was that the probative value of the evidence of photographic identification by Mr Ghandi was not outweighed by the danger of unfair prejudice to the appellant. Such a ruling, while it does not involve the exercise of a discretion, is, for the purposes of appellate review, analogous to an exercise of a discretion. See R v Blick (2000) 111 A Crim R 326 per Sheller JA at [19]. As such, the ruling could be reviewed only in accordance with the well-known principles stated in House v The King (1936) 55 CLR 499 at 504-505.”

95. In R v Arvidson (2008) 185 A Crim R 428; [2008] NSWCCA 135, Beazley JA (as her Honour then was), with whom Johnson and McCallum JJ agreed, observed at 433 [27]:

“The dismissal of the jurisdictional issue raises another matter for consideration, namely, how this Court should approach the appeal. Although a determination under s 137 does not involve the exercise of a discretion strictly so-called, it requires an evaluation of evidence that calls into play similar juridical processes. Accordingly, for an appeal to succeed under s 5F(3A), the Crown needs to establish error of the type identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505: see R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 at [19]; Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195 at 210.”

96. In Abbosh v the Queen, Bene v The Queen [2011] NSWCCA 265, Johnson J (with whom Bathurst CJ and James agreed) stated at [70]:

“Further, this Court (as a court of error) should bear in mind the limited circumstances in which it may overturn a trial Judge's ruling such as a ruling under s.137 Evidence Act 1995. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way or if the judge misdirected himself: R v O'Donoghue (1998) 34 A Crim R 397 at 401. The submission here is that there was, in reality, only one correct answer to the objection, namely the rejection of the evidence under s.137 Evidence Act 1995. I accept that submission. The decision fell within the final category of error in House v The King [1936] HCA 40; 55 CLR 499 at 505.”

97. A different approach was taken by this court in Riley v The Queen [2011] NSWCCA 238. McClellan CJ at CL, with whom Hoeben JA (as his Honour then was) and Grove J agreed, stated at [161] – [162]:

“Neither the appellant nor the Crown made submissions as to how this Court should review the decision of the trial judge. In Vickers v The Queen [2006] NSWCCA 60 at [76], Simpson J stated that an ‘evaluation’ under s137 ‘may only be reviewed on the principles stated in House v The King (1936) 55 CLR 499’. This principle was restated by Howie J in Smale v The Queen [2007] NSWCCA 328 at [32] where his Honour said that an appeal court ‘will not hold that the discretionary judgment that the application of the section involves has been wrongly determined in favour of the Crown unless it was not reasonably open for the trial judge to admit the evidence’. However, this Court has previously stated that where the facts have been established or are undisputed, ‘an appellate court is in as good a position as the trial judge to make that particular decision and thus to conclude that the trial judge was in error’ (R v Ford [2009] NSWCCA 306 citing Warren v Coombes (1979) 142 CLR 531 at 551).

In the present case I am of the view that the trial judge did not have an advantage over this Court. This Court may consider for itself the ‘correct’ result of the balancing exercise.”

98. The weight of authority in this Court is that I would approach the determination of this issue on House v The King principles. Despite this, the appellant submitted that this question should be considered consistent with the principles in Warren v Coombes. I do not consider it necessary to resolve any conflict as to whether the error contended for in this Court is to be assessed consistent with Warren v Coombes or whether the principles in House v The King apply. This is because I am not satisfied that error has been established in the trial judge’s consideration of s 137 of the Evidence Act whichever approach is taken.

99. Despite submitting that the appeal should be considered consistent with the principles in Warren v Coombes, the appellant also identified three errors based on the principles in House v The King.

100. The first alleged error is his Honour’s conclusion that the evidence was relevant because it supported the evidence of the complainant’s sister. His Honour made no finding in this regard. To the extent that his Honour may have made such a comment during oral argument and noted the Crown’s submission in his reasons, that is not relevant to the question of error in his Honour’s reasons

101. The second alleged error is his Honour’s reference to the test for relevance rather than “significant probative value” in the passage extracted above at [40]. I do not accept that a fair reading of his Honour’s reasons discloses any error in this regard. Although it is to be accepted that his Honour appears to have dealt with ss 55 and 137 in a somewhat compendious manner, his Honour clearly had regard to both sections. His Honour described the evidence as having “significant probative value”. Although his Honour expressly referred to the statutory test for relevance, he did not also go on to state the statutory test for significant probative value. Despite this, his Honour expressly stated that he was satisfied that the evidence had significant probative value and that he was not satisfied that any prejudice could not be cured by an appropriate direction to the jury.

102. The third alleged error is said to be the trial judge’s failure to have regard to a material consideration, being the isolated nature of the context evidence. I have already addressed this issue above at [76] – [79]. His Honour was clearly cognisant of the fact that there was only one incident but, in reliance upon the authorities cited, was satisfied that it had significant probative value. As for the alleged error of failing to have regard to the lapse of time between Count 3 and the lookout incident and again between the lookout incident and Count 4, I note that it was precisely to fill in the gap between Counts 3 and 4 that his Honour ruled that the evidence had significant probative value.

103. This third error for which the appellant contends is, in effect, a complaint that the trial judge ought to have exercised the balancing exercise differently. Not only am I not satisfied that none of the three alleged errors is established, nor am I satisfied that the judge’s decision was wrong for any other reason.

104. The evidence had significant probative value for the reasons I have set out above at [80]. The only unfair prejudice identified was the risk that the jury would impermissibly use tendency reasoning in relation to the evidence. The trial judge gave detailed directions warning against such a process of reasoning. His Honour also emphasised that none of the eyewitnesses, except for John, saw the alleged indecent touching.

105. I extracted the lengthy directions that his Honour gave as to how this evidence was to be used by the jury at [42] and [46]. This Court has observed on numerous occasions that it is to be presumed that the jury will follow directions. As McHugh J observed in Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at 425 [31]:

“The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one – accused, trial judge or member of the public – could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.”

106. That is not to say that there will not be trials in which the evidence is of such a prejudicial nature that it might be impossible for a jury to follow directions as to how the evidence is to be used. Despite this, the observations by Button J in R v Adams (No 2) [2016] NSWSC 1359 at [46] – [58] are certainly not applicable in this case.

107. For these reasons I would dismiss the appeal.

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Decision last updated: 19 December 2017