CA v The Queen
[2019] NSWCCA 166
•24 July 2019
|
New South Wales |
Case Name: | CA v R |
Medium Neutral Citation: | [2019] NSWCCA 166 |
Hearing Date(s): | 22 February 2019 |
Date of Orders: | 24 July 2019 |
Decision Date: | 24 July 2019 |
Before: | Price J at [1]; |
Decision: | (1) Grant leave to appeal under r 4 of the Criminal Appeal Rules (NSW) in respect of ground 1A. |
Catchwords: | CRIME – Appeals – Appeal against convictions – sexual assault – multiple complainants – tendency evidence – whether error by judge in not severing counts of indictment – whether judge failed to identify the fact in issue – whether tendency evidence lead to establish identity of offender – cross-admissibility of complainant’s evidence – whether evidence was capable of proving appellant’s sexual interest had significant probative value – whether common features of sexual offending – whether location of offending relevant to establish tendency – whether probative value outweighed danger of bolstering identification evidence – whether danger of impermissible co-incidence reasoning – whether directions could reduce prejudicial effect – whether error in judge’s directions to jury – erroneous use of metaphor – whether final direction overcame erroneous metaphor – failure by counsel to seek re-direction – rule 4 – whether potential injustice – photo board identification – whether photo array suggested person in police custody – whether probative value of evidence was outweighed by danger of prejudice – whether error in not discharging jury – whether judge erred in not properly considering issues relevant to the application to discharge pursuant to s 53C(1)(a) Jury Act – whether error in moving to a majority verdict – whether error in failing to give Black direction |
Legislation Cited: | Crimes Act 1900 (NSW) ss 61D, 61E, 61F, 78K |
Cases Cited: | BC v R [2019] NSWCCA 111 |
Texts Cited: | New South Wales Legislative Council, Second Reading Speech to Jury Amendment (Verdicts) Act 2006 (NSW) (Hansard), 9 May 2006 |
Category: | Principal judgment |
Parties: | CA (Appellant) |
Representation: | Counsel: |
File Number(s): | 2015/103839 |
Publication Restriction: | Non-publication and suppression order made with respect to anything which may directly or indirectly identify each of the complainants and the accused. |
Decision under appeal: | |
Court or Tribunal: | District Court |
Jurisdiction: | Criminal |
Date of Decision: | 26 May 2017 (conviction); |
Before: | Lakatos SC DCJ |
File Number(s): | 2015/103839 |
Judgment
PRICE J:
Introduction
Following a trial in the District Court before Lakatos SC DCJ (“the judge”) and a jury, the appellant was found guilty of 31 sexual offences which took place between 1982 and 1986 in relation to five complainants.
Upon his arraignment before the jury on 4 April 2017, the appellant pleaded not guilty to an indictment containing 35 counts. Three of those counts (24, 25 and 27) were the subject of a directed verdict of not guilty at the close of the Crown case, after the Crown acknowledged that DB, the complainant in respect of these counts, had not given evidence in support of the alleged offences. On 24 May 2017, the jury delivered unanimous verdicts in respect of counts 2 and 35. On 26 May 2017, the jury found the appellant not guilty in relation to count 31 and returned majority verdicts of guilty for the remaining 29 counts.
Counts 1 to 20 alleged sexual offences against two cousins, JF and SF. JF was aged between 12 and 13, and SF was aged between 11 and 12 when the offending was alleged to have occurred. SF died in 2005 and the Crown relied on the evidence of JF to make out the charges involving SF.
JF and SF lived in the Waverley area of Sydney. JF gave evidence that when he was aged 12, SF told him that he knew someone named “Charlie” who would give him money for sucking his penis and playing with him. After JF agreed to do it, he and SF subsequently met “Charlie”. Fourteen counts (1-6, 8, 10-14, 17 and 19) related to Charlie fellating one or both of the complainants and two counts related to Charlie requiring the boys to fellate him (7 and 15). All of these counts alleged that the appellant had committed homosexual intercourse on a male person, then above the age of 10 years and under the age of 18 years contrary to s 78K of the Crimes Act 1900 (NSW).
Counts 18 and 20 related to Charlie requiring the cousins to fellate each other. These counts alleged that the appellant had incited SF (count 18) and JF (count 20), then under the age of 16 years, to commit an act of indecency contrary to s 61E(2) of the Crimes Act.
Count 9 related to Charlie attempting to anally penetrate JF. This count alleged that the appellant attempted to have sexual intercourse with JF, then being under the age of 16 years, contrary to ss 61D(1) and 61F of the Crimes Act.
Count 16 related to the anal penetration of JF. This count alleged that the appellant had sexual intercourse with JF, then being under the age of 16 years, contrary to s 61D(1) of the Crimes Act.
These offences arose from 10 or 11 separate occasions. The offending in counts 1 and 2 occurred at Waverley Oval whereas the remaining counts, with the exception of counts 13-16, took place at the Mary Immaculate Church in Waverley. Counts 13-16 occurred at the Presbyterian Church, which was close to the Mary Immaculate Church on the other side of Victoria Road.
The offences in counts 21-35 involved three complainants DB, RC and MW (“the club complainants”). It was the Crown case that these offences occurred at the Bronte Surf Life Saving Club (“the Club”), with the exception of counts 31 and 34, which were alleged to have taken place on the grounds of the Mary Immaculate Church.
In respect of DB, there were five incidents when he was aged between 7 and 11 years old. Counts 22, 26, 28 and 29 related to the appellant fellating DB at the Club. These counts alleged that the appellant had sexual intercourse with DB, then being under the age of 16 years contrary to s 61D(1) of the Crimes Act. Count 21 related to the appellant fondling DB’s penis at the Club. This count alleged that the appellant had indecently assaulted DB, then being under the age of 16 years contrary to s 61E(1) of the Crimes Act. Counts 23 and 30 related to the appellant masturbating himself in DB’s presence at the Club. These counts alleged that the appellant had committed an act of indecency towards DB who was under the age of 16 years contrary to s 61E(2) of the Crimes Act.
Count 31 related to the appellant fondling DB’s penis inside the Mary Immaculate Church. The jury found the appellant not guilty of this offence which had been brought under s 61E(1) of the Crimes Act.
In respect of RC, there were two incidents when he was aged around 9 years old. Count 32 related to the appellant fondling RC’s genitals. This count alleged that the appellant had indecently assaulted RC, then being under the age of 16 years contrary to s 61E(1) of the Crimes Act. Count 33 related to the appellant inserting his finger into RC’s anus. This count alleged that the appellant had sexual intercourse with RC contrary to s 61D(1) of the Crimes Act. Count 34 related to the appellant fellating RC. This count alleged that the appellant committed homosexual intercourse with RC, then being under the age of 10 years contrary to s 78K of the Crimes Act. It was the Crown case that the offending in counts 32 and 33 took place in the Club whereas count 34 occurred in the Mary Immaculate Church.
In respect of MW, there was one count (count 35) which related to the appellant handling MW’s genitals at the Club. This count alleged that the appellant had indecently assaulted MW, then being under the age of 16 years, contrary to s 61E(1) of the Crimes Act. MW’s evidence in cross-examination was that the offence took place in the summer of 1983, heading into 1984 at the Club. At the time, MW was 11 years old.
It was the Crown case that the male referred to by the club complainants as Charlie was the appellant, that they were consistent in identifying him as Charlie from the Club and that he was the person involved with the inflatable rescue boat (“the IRB”).
There was no issue at trial that the appellant was an active member of the Club, which he attended on the weekends and other days when he was on duty and that he may have come into contact with the club complainants. There was no issue that the appellant attended the Mary Immaculate Church.
It was the appellant’s case that he denied any sexual impropriety with any of the complainants and cross-examination by Mr A Bellanto QC, the appellant’s senior trial counsel, focussed on challenging the reliability and truthfulness of their accounts. In relation to JF and SF, the appellant placed in issue whether he had had any contact or association with them.
During the trial, JF’s evidence included his participation at the Bondi Police Station on 16 March 2017 in a photo identification procedure during which he identified a photo of the appellant as being Charlie. This evidence was challenged and is the subject of ground 2 of the appeal.
There was a deal of cross-examination of JF, DB and RC which asserted that they had colluded in the allegations that were made against the appellant.
The appellant did not give evidence in the trial. Two brothers gave character evidence which included their opinions that the allegations were out of character and that they were unable to imagine the appellant doing, or contemplating doing any such thing.
The grounds of appeal
The Notice of Appeal identifies the following grounds:
“Ground 1: His Honour erred in not severing counts 1-20 (the [JF and SF] complaints) from counts 21-35 (the club complaints) in that he:
a. Failed to undertake the task set out in Hughes at paragraph [41]
b. Failed to take into account a material consideration, that is, a fact in issue was identification;
c. Erred in his assessment of whether the evidence had significant probative value; and
d. Failed to undertake the balancing exercise mandated by Section 101(2) of the Evidence Act 1995.
Ground 2: His Honour erred in finding that the photo board exercise did not breach s 115 Evidence Act 1995 in that
a. He erred in concluding the photos of the accused did not suggest he was in custody;
b. He did not undertake the balancing act required under section 137.
Ground 3: There was a miscarriage of justice as a result of the Learned Trial Judge's error in not discharging the jury. This error is apparent in that his Honour
a. Did not properly consider issues relevant to the application to discharge pursuant to s 53C(1)(a) Jury Act 1977;
b. Failed to consider his common law discretion to discharge the jury for irregular conduct; and
c. Moved to a majority verdict without considering whether s 55F(2)(a) Jury Act 1977 had been satisfied and giving the jury a Black direction.”
At the hearing of the appeal, the appellant was granted leave to add a further ground of appeal.
“Ground 1A: His Honour erred in directing the jury as to the manner in which they could use the evidence of JF and, in particular, erred by failing to direct the jury that they must be satisfied beyond reasonable doubt that the accused was the perpetrator of counts 1-20 ([the JF and SF complaints]) before his evidence could be used as tendency evidence in respect of counts 21-35 (“the club complainants”) (and vice versa).”
Before venturing further, it is useful to summarise the proceedings before the jury was empanelled.
Proceedings before the jury was empanelled
The appellant was initially charged on an indictment containing 42 counts. The additional seven counts related to five other complainants (not being JF, SF and the club complainants). Counts 36-37 related to the complainant RH, count 38 related to the complainant TD, count 39 related to the complainant JH, count 40 related to the complainant MM and counts 41-42 related to the complainant MJ.
Prior to empanelling, the appellant moved on a notice of motion seeking the following orders:
(a)counts 1-20 (JF and SF complaints) be heard separately;
(b)counts 21-35 (the club complaints), plus three of the remaining complaints (counts 36-39), be heard together in a separate trial; and
(c)The last two complainants (MM and MJ) be heard as separate trials (counts 40-42).
The application for separate trials was based on the cross-admissibility of tendency evidence.
At the outset of argument, the Crown discontinued counts 36 and 37 which related to RH and presented an amended indictment on 23 March 2017, which contained 40 counts. The Crown conceded that counts 38-40, relating to the complainants MM and MJ should be heard as two separate trials. The appellant was arraigned before the judge on the amended indictment.
The alleged tendency
The Crown had filed a revised tendency notice dated 20 December 2016 asserting that the evidence in respect of each complainant was cross-admissible as tendency evidence.
On 23 March 2017, the Crown filed a further revised tendency notice dated 22 March 2017 which reflected the omission of the RH counts on the amended indictment. The tendency sought to be proved was:
“[The appellant’s] tendency to have a particular state of mind, namely a sexual interest in males aged 7 or 8 to 15 years; and
[The appellant’s] tendency to indecently and sexually assault such males as charged in the indictment.”
In the further revised tendency notice the Crown identified the following 11 features which were said to support these tendencies:
(1)The complainants were all male and aged between 7 and 15 years old;
(2)The alleged offences all occurred in the Bronte/Waverley area;
(3)The appellant gained access to DB, RC and MW through his involvement in the Club, where they were all in the Bronte Surf Club Nippers. The alleged offence against MW and some of the alleged offences against DB and RC took place at the Club;
(4)The alleged offences against MM and MJ took place at Eastgardens. More particularly, both offences involved Eastgardens shopping centre;
(5)The alleged offences against TD occurred at Gordon’s Bay;
(6)Some of the alleged offences against JF, SF, DB and RC took place at the Mary Immaculate Church in Waverley;
(7)The alleged offences against MW, TD, JH, MM and MJ all took place spontaneously;
(8)The alleged offences against JH and MM involved a pretence that the appellant was doing a massage course and involved getting the boys to follow him to a different location;
(9)The alleged offences against JF, SF, JH and MM involved the payment, or offer of payment, of money;
(10)The allegations in relation to JF, SF, DB, RC, TD and MJ involved fellatio; and
(11)The allegations in relation to JF, SF, DB and RC involved touching and fondling of the complainants’ penises.
On 27 March 2017, his Honour delivered judgment (“the first judgment”). His Honour found that the features involving the complainants TD and JH differed significantly and that those differences precluded a finding that they had significant probative value in proving the offences alleged in counts 1-35. His Honour said:
“…these are the matters I consider of significance.
1. The alleged offences occurred between 1992 and 1994. That is to say six to eight years after the offences in the earlier counts.
2. Prior to the alleged offences, the complainants were unknown to [the appellant].
3. [TD] and [JH] had no connection with the other complainants or with any clubs or places the other complainants were connected to.
4. The locations of the alleged offences were different, Gordons Bay and Clovelly Beach car park, and they were places with unlimited access by the public, unlike churches or surf clubs, acknowledging that some of the early alleged offences occurred at Waverley Oval.
5. [The appellant] engaged the complainants with aggression, I am talking about the allegation [TD] makes and subterfuge, I am talking about the allegation [JH] makes about wanting to do the massage.
6. The alleged offence involving these complainants involved an element of stalking, which appears not to be present in relation to the earlier complainants.”[1]
[1] Judgment, 27 March 2017, 43-44.
In delivering his reasons, his Honour said:
“I consider that the evidence relevant to the complainants [JF], [SF], [DB], [RC] and [MW] are relevant as indicating a tendency on behalf of [the appellant] within the definition of s 55 of the Evidence Act, given the similarity of ages, genders and relationships of the complainants and the proximity of time and locations in which the alleged offences occurred as well as the general conduct alleged against [the appellant].
The evidence, I conclude, is adduced to prove that [the appellant] has or had a tendency to act in a particular way. That tendency is as set out in the notice, that [the appellant] had a sexual desire for boys, with whom he connected in the surf club context mainly, and he acted upon that desire by carrying out assaults and intercourse with those boys, is the allegation. I conclude that the formal requirements in s 97(1) have been complied with and, I also conclude that the probative value of that evidence substantially outweighs any prejudicial effect in s 101(2).
I made some reference above to the arguments advanced by Mr Bellanto. He identified prejudice which apply to very many historical sex cases involving multiple complainants of tender years. Courts have considered, in not dissimilar circumstances, that tendency evidence meets the requirements of ss 97 and 101. In light of these factors, I consider that the appropriate directions as to the use of the tendency evidence will adequately protect the interests of [the appellant] and will ensure that he has a fair trial”.[2]
[2] Judgment, 27 March 2017, 44.
His Honour decided:
“…there should be a separate trial involving the complainants [JF], [SF], [DB], [RC] and [MW] on the one hand, to be separated from the trials involving [TD] and [JH] and,… I consider that there should be separate trials for [MM] and [MJ].
The identification issue
On 16 March 2017, JF spoke with the officer-in-charge, Detective Senior Constable Jesse Porter, and participated in a photo identification procedure. The procedure was filmed and reproduced onto a DVD.
In the procedure, JF identified the appellant from a photo board.
The photo board depicted photographs taken of both the front and the profile of nine males. Those photographs were found by the officer-in-charge, in archived evidence relating to an earlier investigation and trial of the appellant in the 1980s. At the earlier trial, the appellant was acquitted, and on the application of his legal representatives at that time the Police Service had undertaken to destroy the photographs of the appellant.
The application made by the appellant to the judge was for JF’s identification evidence of the appellant by way of a “photo board” to be ruled inadmissible and excluded.
The appellant contended that the photo board suggested that they were pictures of persons in police custody and that the evidence was precluded from being adduced pursuant to s 115(2) of the Evidence Act 1995 (NSW).
The appellant further argued that the evidence had been improperly obtained and should be excluded on public policy grounds in accordance with s 138 of the Evidence Act.
The appellant submitted that the photo board was seriously tainted due to the failure of the Police Service to comply with the undertaking to destroy the photographs of the appellant in connection with his 1989 trial. It was contended that this failure was a serious breach as had the photographs been destroyed there would have been no photo board available to show to JF and no consequent identification. The appellant submitted the prosecution should not have the benefit of evidence obtained and used in the breach of the undertaking with which DSC Porter intentionally, recklessly or negligently failed to comply.
Another argument was that there was a real possibility the jury would use tendency evidence to identify the appellant as the offender in the first 20 counts, or alternatively, would use the identification to find the alleged tendency. Mr Bellanto put to the judge:
“…a jury will impermissibly give the photo identification evidence inappropriate weight by reason of the tendency evidence relative to the club complainants, which is an impermissible use: Selby v R [2017] NSWCCA 40. A strong direction in reality could not cure such prejudice.” (Emphasis added.)
As to this argument, the Crown contended that Selby v R[3] (“Selby”) considered the distinction between using other evidence to bolster identification evidence, as opposed to going to the strength of the Crown case as a whole. The Crown noted that the appellant’s argument appeared to be that the identification by JF was weak and that there was a real risk that a weak identification would be bolstered by the tendency evidence relevant to the club complainants. The Crown submitted that the decision of the Court of Criminal Appeal in Selby did not find that any such prohibition was breached based on their Honours reasons at [36] that:
“The distinction … may be significant if, as was the case in Razzak, there is evidence which falls well short of ‘positive identification’ and where the issue is admissibility. That is not this case…”
[3] [2017] NSWCCA 40.
On 29 March 2017, his Honour delivered judgment (“the second judgment”). His Honour found that the use of the evidence by DSC Porter was not intentional, not reckless, not unfair or inconsistent with the minimum standards required of the Police Service and that he could not discount the possibility that what had occurred was a result of systemic error, not deliberate and wilful acts. His Honour concluded:
“…that the officer committed no impropriety and absent evidence from any other officers who may have been involved in the process, there is no evidence to suggest that any other police officer intentionally committed any impropriety.
I conclude that Detective Senior Constable Porter did not know of the undertaking provided by the Police Service to destroy the photographs of [the appellant]…
…In my opinion an equally open and preferable construction is the officer, against the background of the unsuccessful prosecution of [the appellant] in 1989, was acting carefully so as to not jeopardise the present prosecution”.[4]
[4] Judgment, 29 March 2017, 8-9.
His Honour had regard to the potential prejudice and to the relevant factors under s 138(3) of the Evidence Act and said:
“…in the present circumstance the evidence has significant probative value and accordingly this favours the greater public interest in the submission. Similar observations can be made about the second matter in s 138(3), the importance of the evidence.
The nature of the relevant offences are that they are serious, and again this militates towards the admissibility of the evidence. In terms of the gravity of the impropriety I have concluded that the police officer was not aware of the undertaking when he used the photoboard. I am not convinced he was reckless in the sense of having forethought about the potential wrongfulness of his actions and therefore he was continuing on with it. At its highest I consider he may have been negligent but the degree of negligence in my view is apparently slightly given my findings that this was a significant large brief and a complex investigation, and his primary focus was on putting forward the evidence [of] the alleged offences. The probability of not having read and to absorb the documents of which the undertaking was recorded is of a high order.
Those observations also apply to the next factor which is whether or not the impropriety was deliberate or reckless. For the reasons I have expressed above I would not make either of those two findings.
The last matter which may be of some relevance, but was not explored, was whether or not there was available any other proceedings, that is to say which would remedy any alleged breach of the undertaking by police or wilful misconduct by police if that is a finding. That was not explored… but I leave that fact to one side because it was not argued in any real [sense]”.[5]
[5] Judgment, 29 March 2017, 11.
His Honour then considered the argument as to whether the photographs contained in the photo board “suggests” that they were pictures of persons in police custody, contrary to s 115(2) of the Evidence Act.
The judge considered his first impression and said he had expressed that:
“…such a suggestion was open and was based predominantly on the consideration that it was uncommon in non-police circumstances to have photographs taken of both the front and the profile of any person”.[6]
[6] Judgment, 29 March 2017, 11.
The judge noted that the photos were cropped and had other deficiencies, however, his Honour concluded those matters did not carry the weight argued for by the appellant. His Honour went on to say:
“As against those factors none of the photographs have captions. None of the photographs has any indication in the background which might suggest a police custodial setting. Two of the persons depicted it would appear to be either laughing or smiling. I note a reaction not commonly encountered by those who are police suspects, and so as far as can be concerned all of the persons shown are wearing civilian clothing.”[7]
[7] Judgment, 29 March 2017, 12.
His Honour referred to the relevant authorities provided by counsel during argument and found that the present photographs did not provide the suggestion prohibited in s 115(2) of the Evidence Act. His Honour further considered that if he was incorrect, s 138(3) of the Evidence Act was relevant, and for his reasons set out above at [44], concluded that the discretion should be exercised in favour of the admission of the photo identification evidence.
In relation to the complaint by the appellant that the identification evidence was tainted, his Honour found that “very little weight” could attach to that argument, and that there was no prejudice or contamination which accrued from that knowledge in the police identification for two reasons:
“…the first is that the purported identification was of [the appellant] 30 years younger than the present, and secondly the notoriety I infer surrounding this case, certainly at least amongst the complainants, could not have led those persons to believe that [the appellant] had not attracted police interest at some earlier time”.[8]
[8] Judgment, 29 March 2017, 15.
His Honour noted that Selby did not consider that any such prohibition was breached and that the distinction was “if there is evidence which falls well short of ‘positive identification’ and where there are issues of admissibility”. His Honour referred to the decision in Selby, and quoted what was said by the Court at [37]:
"Thus, there was never presented any issue of use in films which would reasonably strengthen weak identification evidence. But this was never a case where the forbidden process of ‘staged’ reasoning would apply”.
His Honour concluded that:
“In my view, those remarks apply with equal force to the present case, as I do not think that the identification by [JF] is properly decided, falling well short of positive identification. And I do consider that an appropriate direction would cure any unfair prejudice which might occur.”[9]
[9] Judgment, 29 March 2017, 17.
Accordingly, the judge allowed the photo identification evidence.
Ground 1: His Honour erred in not severing counts 1-20 (the [JF and SF] complaints) from counts 21-35 (the club complaints) in that he:
a. Failed to undertake the task set out in Hughes at paragraph [41];
b. Failed to take into account a material consideration, that is, a fact in issue was identification;
c. Erred in his assessment of whether the evidence had significant probative value; and
d. Failed to undertake the balancing exercise mandated by Section 101(2) of the Evidence Act 1995.
Argument
These grounds of appeal may be conveniently dealt with together.
Mr Brady SC, the appellant’s senior counsel, accepted that in approaching the issue of cross-admissibility, the judge correctly referred to the legislative test under s 97(1)(b) of the Evidence Act, namely, that the first precondition for admissibility was that the evidence had significant probative value either by itself or having regard to other evidence to be adduced in the trial. Mr Brady observed that in making that assessment his Honour did not have the benefit of the High Court’s decision in Hughes v The Queen[10] (“Hughes”). Mr Brady submitted that it was apparent that his Honour’s assessment of the probative value of the evidence was primarily informed by reference to a number of factors identified in Odgers’ Uniform Evidence Law.
[10] [2017] HCA 20; (2017) 92 ALJR 52.
It was Mr Brady’s contention that this approach led his Honour into error as it detracted from the central inquiries under s 97(1)(b); namely, the extent to which the evidence supports the tendency and the extent to which the tendency makes more likely the facts making up the charged offence: see Hughes at [41].
Mr Brady argued that the judge’s analysis focussed on similarities and common features of the allegations and did not make any meaningful assessment as to the extent to which those factors supported the tendency alleged, nor the extent that any tendency could rationally affect an assessment of a probability of the facts in issue.
As to ground 1(b), Mr Brady referred to Hughes at [16] and submitted that the judge at no stage defined the facts in issue. Mr Brady submitted that the appellant’s defence was primarily that the evidence was insufficient to identify him as the offender and although the appellant challenged the reliability of the complainant’s accounts this did not detract from the primary contest of identification.
Mr Brady complained that the judge’s decision to set aside issues of identification when he determined the probative value of the tendency evidence meant that he failed to take into account a material consideration. That failure led his Honour to misevaluate both the probative value and potential prejudice of the evidence. Mr Brady argued with the major fact in issue kept firmly in mind, any tendency between the JF and SF complaints and the club complaints was superficial and could not amount to more than mere relevance.
Mr Brady referred to Hughes at [39] and pointed out that where identity is in issue, the similarity between the conduct and particularity of the conduct gains increased prominence. When assessed against the issue of identification, it was Mr Brady’s argument that a number of the features listed in the tendency notice and his Honour’s judgment did not support a tendency conclusion.
As to ground 1(c), Mr Brady submitted that the significant weight placed by the judge on the date range of the offending between 1982 and 1986 did not, without more, assist in proving the alleged tendency. Mr Brady referred to the risk of coincidence reasoning by the jury, as the jurors might be tempted that as these offences were occurring at a particular time (and in a particular location), that made it improbable that they were being perpetrated by different persons. As the Crown had specifically disavowed coincidence reasoning, such an approach by the jury would be impermissible.
In being critical of the judge’s reliance on the offences occurring in the same geographical location to support a tendency, Mr Brady contended that the fact the offences occurred in the Bronte/Waverley area “leads to no meaningful support for the alleged tendency”.
Another argument was that the consistency of the perpetrator’s behaviour in certain circumstances and the number of offences tended to detract from proper tendency reasoning. The JF and SF complaints were premised on 10 to 11 separate occasions; it was said that potentially described an offender who tended to seek out and repeatedly target the same victims, whereas the club complainants alleged far fewer assaults on the individual complaints. Furthermore, the number of complaints had no connection with the primary fact in issue being the identity of the perpetrator.
As to the sexual acts relied on to prove the alleged tendency, Mr Brady submitted that when considering the range of conduct that may constitute sexual offences against children, the fellatio and fondling of the complainants’ penises were highly general and of limited probative value.
Although it was conceded the judge did refer to behavioural differences raised by the appellant, Mr Brady argued that the dissimilarities were underestimated by the judge because his Honour had not considered them by reference to the facts in issue, which included identity. Mr Brady complained that the evidence only gave rise to potential misuse by the jury through the application of coincidence reasoning and an impermissible use in bolstering unsafe identification evidence.
As to ground 1(d), Mr Brady submitted that the judge failed to properly apply s 101(2) of the Evidence Act. Mr Brady contended that the particular danger of misuse through coincidence reasoning and identification evidence meant that the prejudice to the appellant was acute. It was contended that the vast majority of features used to link the JF and SF complaints were in fact, reliant on coincidence reasoning to impermissibly identify the perpetrator as the same person.
Whilst his Honour determined that in considering the tendency evidence he would quarantine issues relating to the cousins’ evidence relevant to identity, Mr Brady argued that provided a further basis to conclude that the judge did not properly consider the relevant evidence.
As to grounds 1(a) and 1(c), the Crown submitted that it is clear from his Honour’s reasons that his Honour was aware that he was required to address the question of the extent to which the tendency makes more likely the facts making up the charged offences. Furthermore, it is clear from the judge’s reasons that he considered each count separately and also had regard to the various dissimilarities between the counts.
The Crown pointed out that the tendency evidence was not adduced to prove the identity of the offender.
The Crown referred to The Queen v Bauer[11] (“Bauer”) at [61], where the High Court explained that it is for this Court to determine the question of whether the tendency evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was.
[11] [2018] HCA 40; (2018) 92 ALJR 846.
It was accepted by the Crown that each of the factors identified by the judge may arguably fall short of the significant probative value test under s 97(1), but the probative value of the tendency was to be assessed together with other evidence. The Crown submitted that the tendency evidence admitted did possess significant probative value under s 97(1).
As to grounds 1(b) and 1(d), the Crown said that the main thrust of the appellant’s complaint relates to the approach taken by the judge in respect to the potential impact the tendency evidence may have had on the identification evidence relating to counts 1-20.
The Crown submitted that from the outset of the trial, the Mr Bellanto defined the real issue in the trial as whether there was any sexual impropriety with any of the complainants. The appellant denied any such conduct. The defence case in respect of counts 1-20 was seen on two bases. First, there was an “unlikelihood” that anything happened when and where JF said it happened, and secondly, if the incidents described did occur, it was not the appellant. The appellant contended that the photo board identification was flawed.
The Crown submitted that the position taken by the appellant in the District Court was that the issue of identification was a “self-contained” issue and that tendency evidence could not be used to bolster (what was argued to be) a weak identification case. The Crown emphasised that at trial the Crown did not seek to rely upon tendency or coincidence evidence in respect of the issue of identification.
Another matter that the Crown referred to was that at the time the judge was asked to consider the admissibility of the tendency evidence the question of the admissibility of the identification evidence had yet to be determined. Neither the Crown nor Mr Bellanto objected to his Honour deferring consideration of the identification issue until such time as the position concerning the admissibility of the tendency evidence had been determined.
The Crown pointed out that in his Honour’s second judgment, his Honour dealt specifically with the appellant’s submission concerning the prejudice argued to arise from the jury giving inappropriate weight to the identification by JF by reason of the tendency evidence of the club complainants. The Crown referred to his Honour’s regard to Selby and to his Honour’s finding that the admissible identification evidence could not be described as falling “well short” of a positive identification.
When his Honour’s judgments on 27 and 29 March 2017 were read as a whole, the Crown contended that it could not be said that the judge failed to take into account the potential impact of the tendency evidence on identification, or that he failed to undertake the balancing exercise required by s 101(2). His Honour held that any unfair prejudice could be cured by an appropriate direction.
The Crown observed that the only further direction sought by Mr Bellanto after his Honour’s summing up to the jury concerned the potential impact of the tendency evidence. The Crown pointed out that his Honour then gave a direction specifically quarantining the use of tendency evidence from a consideration of the identification evidence.
The relevant statutory provisions
Tendency evidence is defined in the Dictionary to the Evidence Act as follows:
tendency evidence means 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.
Section 95(1) provides:
95 Use of evidence for other purposes
(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
…
Sections 97(1)(b) and 101(2) relevantly provide:
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
…
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
…
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
...
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
…
The “probative value” of evidence is also defined in the Dictionary:
probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
Consideration
The judge decided counts 36 and 37 involving TD and JH should be separated from counts 1-35 and that there should be separate trials for MM (count 38) and MJ (counts 39-40). After his Honour’s decision, two bases remained for the appellant’s contention that counts 1-20 (the JF and SF complaints) should be severed and tried alone. First, that the evidence of the club complainants was not admissible in proof of the JF and SF charges, and second, the evidence of JF was not admissible in proof of the club complainant charges.
Before proceeding to deal with ground 1, it is important to observe that it is for this Court “itself to determine whether [tendency] evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was”.[12]
[12] Bauer [2018] HCA 40; (2018) 92 ALJR 846 at [61].
The argument on the cross-admissibility of the evidence before the judge was conducted before the High Court’s decision in Hughes. Ground 1(a) specifically refers to Hughes at [41] where the majority (Kiefel CJ, Bell , Keane and Edelman JJ) said:
“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 majority was referring in the above passage to tendency evidence which was being led to establish the commission of a charged offence rather than the identity of the offender. The majority had earlier emphasised the importance of identifying the issue that the tendency evidence sought to be adduced by the Crown was adduced to prove. The majority said at [39]:
“…The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.”
Mr Brady’s contention in this Court was that the judge at no stage defined the facts in issue which included his primary defence, particularly in relation to the JF and SF complaints, that the evidence was insufficient to identify him as the offender.
It is evident from the terms of the further revised tendency notice that the Crown did not adduce the evidence of the club complainants to prove the identity of the person who committed the various sexual offences against JF and SF. The further revised tendency notice identified the asserted tendency that the Crown was seeking to prove, namely:
“[The appellant’s] tendency to have a particular state of mind, namely a sexual interest in males aged 7 or 8 to 15 years; and
[The appellant’s] tendency to indecently and sexually assault such males as charged in the indictment.”
On the Crown case, the fact in issue that the tendency evidence could (if accepted) rationally affect was the probability of the occurrence of a charged offence.[13] As there were multiple counts on the indictment, the cross-admissibility of the evidence required separate consideration of each count to assess whether the tendency evidence which was sought to be adduced was admissible in relation to that count.[14]
[13] Evidence Act 1995 (NSW) ss 55 and 56.
[14] Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52 at [40].
In argument before the judge, Mr Bellanto did not submit that the tendency evidence was adduced to prove the identity of the offender against JF and SF. However, during submissions what was said to the judge by Mr Bellanto included the following:
“Of course one of the difficulties that is going to arise, if this [JF] evidence goes in will be the possibility, a real possibility that the jury will use the tendency evidence to identify [the appellant], vis a vis the first 20 counts or alternatively they will use the identification, vis a vis the tendency. In other words, the jury will use identification evidence for an improper purpose as to the tendency and vice versa.”[15]
[15] Tcpt, 23 March 2017, 29.
In referring to a concern that the jury would use “identification evidence for an improper purpose as to tendency and vice versa”, it appears that Mr Bellanto was referring to the prejudicial effect to the appellant that might arise from the admission of the tendency evidence which was a matter for the judge to consider having regard to s 101 of the Evidence Act. As the High Court said in Bauer at [73]:
“…Despite textual differences between the expressions "prejudicial effect" in s 101, "unfairly prejudicial" in s 135 and "unfair prejudice" in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way. Here there was not a real risk of the jury using the tendency evidence in such an unfair way.”
At a later stage, his Honour said:
“I think, to some extent, we have moved on to the identification issue, Mr Bellanto. I won’t stop you, but I suppose the way that I am looking at this is incrementally, one problem after another, if I can put it that way, or one argument, and the first one really seems to me to be the tendency argument, because that will define the shape of any trial or trials to come.
The next one will be the severance argument, or disposition, which further shapes that the identification here is one which would be self-contained in one or other of the trials, or the trial, later on.”[16]
[16] Tcpt, 23 March 2017, 32.
Mr Bellanto agreed with the judge and the pre-trial issues concerning identification were subsequently determined (see [34]-[52] above). In the first judgment, his Honour said:
“It was common ground between the parties that the issues arising from the Crown’s tendency evidence notice should be determined first, it being accepted that the latter ruling would have significant consequences for the separate trials application.”[17]
[17] Judgment, 27 March 2017, 3.
The approach taken at trial confirms that it was well understood that the identity of the offender in counts 1-20 was not the issue for which the tendency evidence was adduced by the Crown and no error is shown in the judge’s course to subsequently consider the identification issue.
Having identified the issue for which the tendency evidence was adduced, it is for this Court to determine the extent to which the evidence was capable of proving the appellant’s state of mind, namely a sexual interest in males aged 7 or 8 to 15 years. If the evidence has the capacity to do so, the Court must then assess the extent to which the proof of the tendency increases the likelihood of the charged offences.[18]
[18] Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52at [41].
The offences in counts 1 to 20 were alleged to have occurred between 24 September 1985 and 26 September 1986 when JF was aged 12 or 13 years and SF was aged 11 or 12 years. Fourteen counts (1-6, 8, 10-14, 17 and 19) alleged that the appellant fellated one or both of the complainants and two counts alleged that the appellant required the boys to fellate him (7 and 15). Counts 18 to 20 alleged that the appellant required the cousins to fellate each other. Count 9 alleged that the appellant attempted to anally penetrate JF, whereas the allegation in count 16 was that the appellant anally penetrated JF.
The alleged offending in counts 1 and 2 occurred on a grass slope at Waverley Oval, whereas the remaining counts, with the exception of counts 13-16, were alleged to have been committed on a stairway at the Mary Immaculate Church in Waverley. Counts 13-16 alleged that the offences were committed in a courtyard at the Presbyterian Church, which was close by the Mary Immaculate Church on the other side of Victoria Road.
The offences in counts 21-31 were alleged to have occurred between 14 December 1982 and 14 December 1986 when DB was aged between 7 and 11 years old. Counts 22, 26, 28 and 29 alleged that the appellant fellated DB at the Club in Bronte. Count 21 alleged that the appellant fondled DB’s penis at the Club, whereas the allegation in count 31 was that the appellant fondled DB’s penis inside a curtained area of the Mary Immaculate Church. Counts 23 and 30 alleged that the appellant masturbated himself in DB’s presence at the Club. The location of where the offending allegedly occurred at the Club included the St John’s ambulance room, the top floor room and the ground floor corridor.
The offences in counts 32-33 were alleged to have occurred between 1 November 1985 and 1 March 1986 when RC was 9 years old. Count 32 alleged that the appellant fondled RC’s genitals, whereas the allegation in count 33 alleged that he inserted his finger into RC’s anus. Both offences were alleged to have taken place at the ground floor area of the Club. Count 34 alleged that the appellant fellated RC at the Mary Immaculate Church.
The offending in count 35 was alleged to have occurred at the IRB garage in the Club between 31 December 1983 and 1 April 1984, when the appellant handled MW’s genitals. At the time, MW was 11 years old.
The appellant was born in 1967. He was between 18 and 19 years old when counts 1-20 were allegedly committed and 18 years old for the alleged offending against RC. For counts 21-31, the appellant was between 15 and 19 years old.
The evidence, considered as a whole, demonstrated that the appellant had a sexual interest in boys aged between 7 years and 12 or 13 years. It is commonly understood that the boys within this age range have not reached puberty.
The question remains whether the appellant’s sexual interest in pre-pubescent boys is capable of meeting the requirement of significant probative value for admission as tendency evidence. In Hughes, the majority emphasised at [41] that the test posed by s 97(1)(b) of “significant probative value” requires that the evidence, together with other evidence, should “make more likely, to a significant extent, the facts that make up the elements of the offence charged”.[19] As was further explained by the plurality (Kiefel CJ, Bell, Keane and Nettle JJ) in McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 at [27]:
“…Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value.”
[19] See further: Decision restricted [2018] NSWCCA 164 at [91] (Bathurst CJ)
As this is a multiple complainant sexual offence case, for the evidence of the club complainants to be significantly probative of the offending against JF and SF, there must ordinarily be some common feature of or about the offending.[20]
[20] The Queen v Bauer [2018] HCA 40; (2018) 92 ALJR 846 at [58]; McPhillamy v The Queen [2018] HCA 52; (2018) ALJR 1045 at [31].
In considering common features of the alleged sexual offending, I do not propose to take into account the allegations of sexual misconduct in counts 24, 25 and 27, which were the subject of a directed verdict of not guilty, or count 31 for which the jury returned a verdict of not guilty.
Common features of the alleged sexual offending against the club complainants and the alleged sexual offending against JF and SF are:
(1) The similarity of the sexual offences
Fourteen counts of the appellant’s sexual misconduct against JF and SF alleged that the appellant fellated one or both of the boys who were aged between 11 and 13 years. Four counts of the appellant’s sexual misconduct against DB alleged that the appellant fellated DB when he was aged between 7 and 13 years. One count of the appellant’s sexual misconduct against RC alleged that the appellant fellated RC who was 9 years old. One count of the appellant’s sexual misconduct against RC alleged that the appellant inserted his finger into RC’s anus. Other than the two counts that concerned the appellant’s self-masturbation, all of the remaining counts involved allegations of fondling the genitalia of the club complainants.
(2) The offences were committed in the presence of another person
Twenty-six counts involved offending in the presence of another person. As to counts 1-20 (the JF and SF complaints), JF’s evidence was that each of those offences were committed whilst both he and SF were present. In relation to the offending against DB, counts 21-23 were committed in the St John’s ambulance room at the Club in the presence of a St John’s volunteer. Furthermore, DB’s evidence as to count 26 and RC’s evidence as to counts 32 and 33 revealed that those offences occurred during one incident and that they were both present whilst those offences were committed.
(3) The location of the offending
The offences against JF and SF took place in Waverley, whereas most of the offending against the club complainants occurred in Bronte. Waverley and Bronte are neighbouring suburbs in Sydney. More particularly the fellating of RC in count 34 took place at the Mary Immaculate Church in Waverley. Other than counts 1, 2, and 13-16, the offending against JF and SF occurred in the Mary Immaculate Church. Counts 13-16 occurred at the Presbyterian Church, which was close by the Mary Immaculate Church being on the other side of Victoria Road. The evidence demonstrated that Waverley Oval, where counts 1 and 2 were committed, is within walking distance of the Mary Immaculate Church. JF’s account as to his and SF’s conduct shortly after the offences contained in counts 1 and 2 included walking along Henrietta Street and Victoria Road, and purchasing milkshakes and chocolate which they consumed around the front of the Mary Immaculate Church.
Furthermore, it was JF’s evidence in respect of counts 5-7, that he and SF had gone for a swim at Bronte Beach. As he and SF were coming out of the water, JF saw “Charlie” a couple of metres away. Charlie was a lifeguard. As JF and SF walked up the beach, SF veered off and had a conversation with Charlie. SF then returned and told him that Charlie would meet them at the Mary Immaculate Church in two hours-time, which they did and the offences in counts 5-7 were committed. With the exception of count 34, the offences against the club complainants occurred at the Club.
It was not in issue in the trial that the appellant frequented the suburbs of Bronte and Waverley. He was an active member of the Club and attended the Mary Immaculate Church.
I find myself in respectful disagreement with Adamson J (see [185] below) that the location of the offending can only be relevant to co-incidence. In my view, this common feature is relevant to the appellant’s tendency to act on his sexual interest in locations of which he is familiar.
(4) The period of time over which the offences occurred
The offences against JF and SF took place in the summer between October and December 1985. As to the club complainants, the offending against DB occurred in the summer months between 1982 and 1986; the offending against RC occurred in the summer between 1985 and 1986 and in respect of MW, it was between December 1983 and April 1984.
Mr Brady was critical of what was referred to as perceived “similarities” between the allegations being date range, geographical location and the indecent acts. He founded that criticism in part upon what was said to be the judge’s failure to link those similarities to the issues at trial. Mr Brady further argued that whilst some offences could be categorised within defined date ranges, this did not assist in proving the tendency alleged. Furthermore, Mr Brady contended the dissimilarities in the location of the offending and the broad areas described could not provide support for the alleged tendency. Another argument was that “the perpetrators” had behaved differently as between the complainants – with JF and SF being marked by secrecy and planning, and the club complainants being brazen, public and opportunistic. Mr Brady submitted that the sexual acts committed against the club complainants and JF and SF were of a highly general nature when considering the range of conduct that might constitute sexual offending against children and had limited probative value in proving the tendency alleged and any proved tendency did not have significant probative value.
The tendency evidence was not adduced by the Crown to prove the identity of the offender but was adduced to prove the occurrence of the offences. Whilst the appellant’s submissions refer to dissimilarities in the locations of the offences and the nature of the offending, the evidence must be considered as a whole. The evidence of the club complainants demonstrates that the appellant had a sexual interest in pre-pubescent boys and the common features identified are strongly probative of the appellant having committed the sexual offences against JF and SF. Similarly, JF’s evidence not only supports the appellant’s tendency to have a sexual interest in pre-pubescent boys but is strongly probative of the appellant having committed the sexual offences against the club complainants.
Grounds 1(a), 1(b) and 1(c) are not made out.
Mr Brady further argued that if the tendency evidence was of sufficient probative value to pass the significant probative value test of s 97, it could not be used against the appellant as the probative value of the evidence did not substantially outweigh the prejudicial effect of the evidence.[21] Mr Brady contended that the judge did not undertake the balancing exercise mandated by s 101. The focus of Mr Brady’s criticism in this Court was the potential misuse of the evidence of the club complainants in bolstering what was said to be unsafe identification evidence in the Crown’s case of the offences allegedly committed against JF and SF. Mr Brady was referring to the photo identification procedure and JF’s identification of the appellant from a photo board on 16 March 2017 (see [34]-[36] above) which was admitted over defence objection.
[21] Evidence Act 1995 (NSW) s 101(2).
Mr Brady submitted that the quality of the evidence of identification was very different in the Crown case of the offences against JF and SF, and in the Crown case of the offences against the club complainants. Mr Brady referred to the identification evidence of the club complainants being substantially more compelling as it was founded upon their association with the appellant through the Club.
It is evident from what was said by the judge in the first judgment that his Honour was well aware that the tendency evidence adduced by the Crown could not be used against the appellant, unless the evidence substantially outweighed any prejudicial effect the evidence may have on the appellant. His Honour referred to s 101(2) involving:
“…an evaluative judgment by the trial judge not the exercise of a discretion, as to the prejudicial effect evidence may have on the defendant taking into account the ameliorating effect of any directions that may be available”.[22]
[22] First Judgment, 27 March 2017, 5.
His Honour referred to Mr Bellanto’s argument that:
“…by allowing the coincidence evidence in a case where there was no cogent identification evidence, a matter which he contends is the situation here, that coincidence evidence could not be used to bolster the complainant’s evidence as to identification”.[23]
[23] First Judgment, 27 March 2017, 9.
The judge noted that argument was not complete and did not deal with the issue in the first judgment, but considered it in the second judgment.
In the first judgment, his Honour referred in some detail to relevant authorities on the construction of s 101(2), which included the observations of Hoeben CJ at CL in Sokolowskyj v R[24] at [52]-[56] that the issue of unfair prejudice could not necessarily be alleviated by a direction to the jury.
[24] [2014] NSWCCA 55; (2014) 239 A Crim R 528.
His Honour went on to refer to Mr Bellanto’s points that were submitted to require the rejection of the tendency evidence which were:
“1. The recognised peculiar characteristic of sexual cases to arouse prejudice.
2. The real risk of the jury adopting an impermissible course of reasoning and misusing the tendency evidence.
3. Due to the number of counts on the indictment dealing with conduct said to be ‘of a widely different sexual nature’ involving multiple complainants over extended periods of time, the prejudice, it is argued, is overwhelming and obvious.
4. The broad description of the tendency is likely to deflect the jury from a proper consideration of the evidence bearing upon [the appellant’s] guilt or innocence.
5. The jury would be so emotionally affected by the tendency such that direction as to the permissible and impermissible use of the evidence would be futile.”[25]
[25] First Judgment, 27 March 2017, 39.
In Hughes, the majority in pointing out at [17] the various ways that tendency evidence may cause prejudice added that “there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence”.
His Honour concluded in the passage quoted at [32] above that the probative value of the tendency evidence substantially outweighed any prejudicial effect. His Honour also considered that “appropriate directions as to the use of the tendency evidence will adequately protect the interests of [the appellant]” (see [32] above).
Whilst all of the risks identified by Mr Bellanto were present, it was open to his Honour to conclude that the probative value of the tendency evidence substantially outweighed the risks of prejudice identified in the judgment.
In the second judgment, his Honour considered Mr Bellanto’s submission of prejudice that was said to arise from the evidence of the club complainants being used to bolster the photo board identification evidence. Mr Bellanto had referred to Selby in which the Court (Leeming JA, Schmidt and Wilson JJ) quoted at [32] what was said by Levine J in R v Razzak:[26]
“It is as much a matter of common sense, if not logic, as it is a matter of principle, to assert that other evidence, other circumstantial evidence, touching upon the issue of identification, cannot bolster flawed evidence of identification to the point where the flaws are eliminated and a finding can be made that that flawed identification is correct.”
[26] [2004] NSWCCA 62.
In Selby, the accused was charged with one count of demanding money with menaces and one count of intimidation. The victim and location of the offences were the same. The first offence occurred in July and the second in October. The accused pleaded guilty to the intimidation count which had occurred in October and stood trial on the single count of demanding money with menaces. The trial judge ruled that the evidence relating to the later intimidation was admissible as coincidence evidence. On appeal, the accused argued that the trial judge erred in directing the jury that they could use coincidence evidence to corroborate identification evidence.
In dismissing the appeal, the Court said at [36]:
“The distinction made by Levine J in Razzak may be significant if, as was the case in Razzak, there is evidence which falls well short of “positive identification” and where the issue is admissibility. That is not this case. Mr Singh was under no doubt that he saw the same man twice. Moreover, there was no dispute in the present appeal that all of the evidence was properly before the jury.”
The Court concluded there was never presented to the jury any issue of using coincidence reasoning to strengthen weak identification evidence. The victim’s identification of the accused had been unequivocal at the trial. This was never a case “where the forbidden process of ‘staged’ reasoning would apply”: see [50] above.
As has been mentioned at [50]-[51] above, his Honour considered the Court’s distinction from Razzak on the facts in Selby also applied in the present case. His Honour concluded that JF’s photo board identification evidence did not fall “well short of positive identification” and that this was not a case where “staged” reasoning would apply.
In addition to JF’s identification of the appellant’s photograph from the photo board, which contained photographs of nine men, evidence relevant to the identity of the offender in counts 1-20 included the physical description of the offender, JF’s evidence that the offender introduced himself as Charlie; JF’s evidence that he saw Charlie at his confirmation ceremony at the Mary Immaculate Church; JF’s evidence that he saw Charlie at Bronte Beach; and JF’s evidence that SF had mentioned that it was someone named Charlie who would give him money for sucking his penis.
In carrying out the weighing exercise required by s 101(2), the judge was entitled to disagree with the contention that there was no cogent identification evidence in the Crown case of the sexual offending against JF and SF. It was open to the jury to accept the honesty and reliability of JF’s identification evidence without having regard to the club complainants’ evidence. The extent of that identification evidence lessened the risk of the jury using the tendency evidence in an unfair way so as to identify the appellant as the offender by coincidence reasoning.
It was open to the judge to decide that the probative value of the tendency evidence substantially outweighed the risk that the jury would use that evidence improperly so as to strengthen the Crown’s identification evidence in counts 1-20 and that an appropriate direction would be given to the jury to “cure any unfair prejudice that might occur” (see [51] above).
In the weighing exercise that his Honour undertook in both the first and second judgments, he was entitled to take into account “the ameliorating effect of any directions that may be available to reduce the prejudicial effect”.[27] His Honour was entitled to expect that the jury would follow his directions.[28] This is not a case such as Sokolowskj v R[29] where there was a real risk that notwithstanding directions to the jury, the prejudice could not be alleviated by a jury direction.[30]
[27] DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [172] (Simpson J).
[28] The Queen v Glennon (1992) 173 CLR 592 at 603; 60 A Crim R 18 at [25]-[26].
[29] [2014] NSWCCA 55; (2014) 239 A Crim R 528; see also: Decision restricted [2018] NSWCCA 164.
[30] Sokolowskj v R [2014] NSWCCA 55; (2014) 239 A Crim R 528 at [52]-[56].
The question remains whether his Honour’s directions ameliorated the prejudice pointed to by the appellant. An analysis of the directions that his Honour gave is undertaken in the consideration of ground 1A.
I have dealt with the judge’s consideration of s 101(2) as the parties did not submit that the statement in Bauer that I have quoted at [83] above applied to s 101(2). However, in BC v R [2019] NSWCCA 111 this Court (Leeming JA; Ierace and Hidden JJ) with the agreement of the parties, considered at [60] that the High Court’s statement applied to the question of whether the probative value of the evidence was substantially outweighed by any prejudicial effect on the appellant for the purposes of s 101(2), even though Bauer was concerned with s 97.
I have already provided my reasons for the conclusion that the tendency evidence was strongly probative of the appellant having committed the sexual offences. The significant probative value of the evidence, in my view, substantially outweighed any prejudicial effect on the appellant.
Ground 1(d) is not made out.
His Honour did not err in not severing counts 1-20 from counts 21-35. I would reject ground 1 of the appeal.
Ground 1A: His Honour erred in directing the jury as to the manner in which they could use the evidence of JF and, in particular, erred by failing to direct the jury that they must be satisfied beyond reasonable doubt that the accused was the perpetrator of counts 1-20 ([the JF and SF complaints]) before his evidence could be used as tendency evidence in respect of counts 21-35 (“the club complainants”) (and vice versa).
Argument
Mr Brady submitted that the judge erred in failing to direct the jury that they must be satisfied beyond reasonable doubt that the appellant was the perpetrator of counts 1-20 before the evidence could be used as tendency evidence in respect of counts 21-35.
Mr Brady submitted that it was imperative for the jury to be directed that the tendency evidence could be considered only if the jury were satisfied that the appellant was the perpetrator of counts 1-20. Mr Brady contended that the supplementary direction given by the judge was deficient as it failed to articulate in terms:
(a)That the jury needed to assess the evidence in stages, starting first with the evidence relating to the identification of the cousins’ perpetrator;
(b)That the evidence in the club complaints could not be considered at all in assessing the cousins’ identification evidence;
(c)The jury could not reason from any similarities between the two sets of counts that it was improbable that a different perpetrator was involved (this was particularly important in light of the judge’s “cookie jar” example, which raised the spectre of coincidence reasoning); and
(d)Perhaps most critically, the direction gave no guidance to the jury about how they were to proceed or use the tendency evidence if they were not satisfied beyond reasonable doubt of the identity of the cousins’ perpetrator.
Mr Brady accepted that r 4 of the Criminal Appeal Rules (NSW) was required to argue this ground as a direction in the terms outlined had not been sought at trial and no complaint was made at trial about the supplementary direction. However, the appellant argued that leave should be granted because each of the directions were required to prevent a miscarriage of justice.
This ground of appeal was advanced in the alternative without a concession by the appellant that the tendency evidence was admissible if an appropriate direction had been given.
As to this ground of appeal, the Crown referred to the judge’s directions and submitted that the jury could not possibly have engaged in any impermissible reasoning process if they followed his Honour’s clear directions that:
(a)It was impermissible to leap to a conclusion of guilt in respect of the indictment because they found another count proved (rather the count they found proved could only be used as tendency evidence if the jury found that it had established the tendency);
(b)They needed to be satisfied that the appellant possessed the tendency contended for; and
(c)They could not use any tendency evidence arising out of the club complaints in proof of identification on counts 1-20.
In referring to r 4, the Crown referred to the judge’s directions that followed upon the appellant’s senior counsel’s request and no further directions were requested. The Crown submitted that the proposed direction was not necessary and no miscarriage of justice had occurred.
In oral argument, Mr Brady contended that the “cookie jar” example did exactly what tendency evidence was not allowed to do, by saying that the identity of the person who committed the offence by raiding the cookie jar on the 13th occasion is proved by the tendency. As Mr Brady said:
“On 12 previous occasions he’s done it, therefore, although we don’t know the identity of who did it on the 13th occasion, because he’s done it 12 times before it must be him”.[31]
[31] Tcpt, 22 February 2019, 7.
Mr Brady argued that the jury should have been told that the tendency evidence could not be used at all in relation to the identity of the appellant as the perpetrator.
The Crown said that the practical effect of the judge’s directions was that the jury could not use the tendency evidence in relation to identity. The purpose of the cookie jar example was whether the cookie jar was raided on the 13th occasion, not whether it was a particular person. The Crown submitted that the cookie jar example needed to be read with the examples that his Honour had previously given about a tendency to act in a particular way. The Crown argued that the judge “did not give that example in the context of identifying it to be the one and same person”.[32]
[32] Tcpt, 22 February 2019, 23.
Consideration
Rule 4 applies to this ground as no objection was raised at trial.
In order to consider the various arguments, the judge’s directions as to tendency must be set out in some detail. His Honour’s oral directions were helpfully accompanied by slides which set out in short form those matters about which his Honour was speaking.
Before turning to the directions on tendency, it is apposite to note that his Honour had earlier emphasised in the summing up “that each count needs to be considered separately, and each of the questions which are referred to need to be considered separately, because that is your obligation as a jury”.[33]
[33] Tcpt, 1 May 2017, 28.
When directing the jury as to the tendency alleged by the Crown, his Honour said:
“There is a direction that I need to give you about what the Crown relies upon in this case, tendency evidence…
Going to slide 17, which is the tendency evidence direction about which I am about to speak to you of. As you would be aware, [the appellant] is charged with the [32] counts you have in front of you. The complainants are [SF], [JF], [DB], [RC] and [MW]. You have evidence before you that the Crown relies upon as directly establishing that [the appellant] committed those offences, namely the evidence of the complainants themselves. [RC] said that [the appellant] did this to him and that to him and so on. However, you also have evidence that the Crown relies upon to prove beyond a reasonable doubt that [the appellant] had a sexual interest in the complainants, and was willing to act upon it in a way which the complainants allege.
In other words, the Crown points to the allegations of [JF] as showing a sexual interest, and a capacity to act on that sexual interest, and asks you to take that evidence into account in establishing the other charges involved, relating to the complainants [DB], [RC] and [MW], and vice versa. In other words, the Crown is asking you to take into account the evidence of each of them as supporting that [the appellant] had the tendency to commit indecent sexual assault against boys.
…
This evidence is before you because the Crown says and argues that there is a pattern of behaviour that reveals that [the appellant] has a tendency to act in a particular way, namely a tendency to have a particular state of mind, being a sexual interest in males between the ages of seven and 15 years, and a tendency to act upon that interest by indecently and/or sexually assaulting such males as are charged in the indictment.”[34] (Emphasis added.)
[34] Tcpt, 2 May 2017, 107-108.
His Honour went on to direct the jury as to the requirements of which they were to be satisfied before they could use the tendency evidence:
“…If you are considering the complaints against [JF], the so-called tendency evidence would be the evidence relating to [RC], [DB] and [MW]. But before you can use evidence of what happened to those latter three complainants, you need to be aware of the limitations which I am about to tell you. You must make two findings beyond a reasonable doubt. The first finding is that you must be satisfied beyond a reasonable doubt that one or more of those other acts occurred. In my example, that one or more of the allegations which [RC], [DB] and [MW] made, occurred. In making that finding, you do not consider each of those acts in isolation, but you consider all of the evidence, so you do not look at solely [RC’s] allegations, or solely [DB’s] allegations, or solely [MW’s] allegations. You look at them all together and ask yourself whether you are satisfied that a particular act relied upon actually took place.
So the first, very important point, to use [RC], [DB] and [MW’s] evidence to support [JF’s] counts, you must look at those facts together, not in isolation, and conclude beyond a reasonable doubt that the acts that [RC], [DB] and [MW] spoke of have been established beyond reasonable doubt. That is the first requirement.
If you cannot find that any of these acts is proved by the Crown beyond reasonable doubt, then you put aside any suggestion that [the appellant] had a sexual interest in the complainant as alleged by the Crown, and decide the case on the remainder of the evidence. If you are satisfied beyond a reasonable doubt that one or more of those acts occurred, then you go on to consider the second finding. You ask yourself whether from the act or acts that you found proved you can infer or conclude beyond reasonable doubt that [the appellant] had a sexual interest in the complainant as alleged. If you cannot draw that inference or conclusion beyond reasonable doubt, then again you must put aside any suggestion that [the appellant] had a sexual interest in the complainant.”[35] (Emphasis added.)
[35] Tcpt, 2 May 2017, 109-110.
And further:
“…you may use those facts or conclusions in determining whether [the appellant] committed the offences charged. This is somewhat circular in a trial like this. There is a degree of difficulty in it. But in short compass again, I will try and explain it in bare bones.
If you are considering, for example, count 1 in the indictment, the count involving [SF], the Crown says you can look to the evidence of the complaints made by [DB] and [RC] and [MW] to establish that [the appellant] had an interest in young boys, a sexual interest, and acted on that sexual interest. But before you can use the evidence of [DB], [RC] and [MW], you must be satisfied beyond a reasonable doubt that the acts involving them did in fact occur, number 1.
Number 2, you must be satisfied beyond a reasonable doubt that those acts show that [the appellant] had a sexual interest of the kind the Crown argues you should find. Unless you come to those conclusions beyond a reasonable doubt, you put aside any evidence involving [DB], [RC] and [MW] in determining counts 1 to 20.”[36] (Emphasis added.)
[36] Tcpt, 2 May 2017, 110-111.
Ground 1A complains that there was a failure by the trial judge to direct the jury they must be satisfied beyond reasonable doubt that the appellant was the perpetrator of counts 1-20 (the JF and SF complaints) before JF’s evidence could be used in respect of counts 21-35 (the club complainants) and vice versa.
Put shortly, it was the position of Mr Bellanto that the effect of the notes was to disclose a failure by a juror or jurors to engage in deliberations from the outset. He submitted that this indicated an unwillingness on part of a juror to honour the oath or affirmation taken by the jurors at the start of the trial about their function, and that the particular juror or jurors should be considered as disqualified or incompetent in the same way as a juror who could not take part in deliberations from some personal impediment. He referred by way of analogy to Petroulias v R (2007) 73 NSWLR 134, [2007] NSWCCA 134, where it was held that the trial process was flawed from the outset because one of the jurors was disqualified from serving due to a criminal conviction. For that reason, he argued, the discharge of a particular juror could not remedy the situation. Alternatively, he argued that if that course were taken, the contents of the notes were such that there was a risk of a substantial miscarriage of justice if the trial were to be continued with the remaining jurors: s 53C(1)(a) of the Jury Act.
Again put shortly, the Crown Prosecutor’s position was that the notes were equivocal as to whether unanimous verdicts could be achieved, so that it was appropriate that a Black direction be given (Black v The Queen (1993) 179 CLR 44 at [50]) with an invitation to send a further note if disagreement could not be resolved. Consideration could then be given to a majority verdict. He also raised the possibility of the discharge of a single juror under s 53B of the Jury Act under paragraphs (c), that the juror had refused to take part in deliberations, or (d), that the juror should not continue to act as such because of any other reason affecting his or her ability to perform the functions of a juror.
His Honour refused the application to discharge the jury. He considered it inappropriate to seek clarification of the matters raised by the notes through communication with the foreperson, citing R v Orgles (1993) 93 Cr App R 185 and The Queen v Roberts [2004] QCA 366. The effect of those decisions is that it is not proper to separate out jurors and examine them as to the details of disagreements such as these. He also declined to exercise the powers under s 53B of the Jury Act. On the limited information provided by the notes, he concluded that there had been some deliberation and that, given the length of time that the jury had already been deliberating and the fact that they had indicated unanimous agreement on some counts, it could not be said that the trial process was flawed from the outset.
However, his Honour concluded from the notes that there was now “a stalemate”. He considered it appropriate to bypass the Black direction and, if the prerequisites of s 55F of the Jury Act were met, to permit majority verdicts. He concluded that the appropriate course was to send a note to the jury seeking an indication of the counts upon which they had unanimously agreed, to take the verdicts on those counts, then to engage in the process under s 55F to determine whether the time had come to permit majority verdicts.
The proposed note was sent to the jury, eliciting the response that they were unanimous as to Counts 2 and 35 (MFI 56, 57). However, a further note was received (MFI 58), which read:
“Your Honour,
You have 11 jurors who would like to see this case through to verdict.
11 of us have looked at all the evidence and have had true discussions in reaching our verdict.
We are almost unanimous on each count bar 4 which I’m certain we can reach a unanimous verdict given the opportunity.
We are completely devastated that due to the actions of this juror we are now in this position.
We sincerely hope we can have this juror removed and continue with our deliberations.
Sincerely, G4 jurors (minus 1).”
Presumably, “G4” was a reference to the courtroom in which the trial was being conducted.
This led to the re-agitation of the application for discharge by Mr Bellanto, which his Honour refused. Subsequently, the verdicts of guilty were taken on Counts 2 and 35. Evidence was taken from the foreperson, pursuant to s 55F(2)(b) of the Jury Act, that unanimous verdicts on the remaining counts were unlikely and his Honour directed that majority verdicts could be returned.
Later that same day, a further note was received from a juror (MFI 59). Written in a handwriting different from those in the other notes, it was in these terms:
“Your Honour,
I suspect dominant misleading statements were handed to you. The situation is 11 to one on many counts but we have also 9 to 3 on other counts.
If you know this, then I have nothing else to add.
(the 1 out of the 12)”.
Mr Bellanto made yet another application for the discharge of the jury, which again was refused. It was on 26 May that the jury returned majority verdicts on the remaining counts.
It will be necessary to examine part of his Honour’s reasons in greater detail when dealing with this ground of appeal. It is also necessary to set out relevant provisions from ss 53A, 53B and 53C of the Jury Act (contained in Pt 7A):
53A Mandatory discharge of individual juror
(1) The court or coroner must discharge a juror if, in the course of any trial or coronial inquest:
…
(c) the juror has engaged in misconduct in relation to the trial or coronial inquest.
(2) In this section:
"misconduct" , in relation to a trial or coronial inquest, means:
(a) conduct that constitutes an offence against this Act, or
(b) any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice in the trial or inquest.
53B Discretionary discharge of individual juror
The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if:
…
(b) it appears to the court or coroner (from the juror's own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror's familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or
(c) a juror refuses to take part in the jury's deliberations, or
(d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror.
53C Discretion to continue trial or coronial inquest or discharge whole jury
(1) If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must:
(a) discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or
(b) if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors.
…
(Section 22 deals with the minimum number of jurors required in the event of a juror or jurors being discharged under Pt 7A.)
The three matters raised by this ground will be dealt with in turn.
(a) Failure to properly consider issues relevant to discharge under s 53C(1)(a) of the Jury Act
The requirement to consider the discharge of the jury under s 53C(1)(a) arises if an individual juror has been discharged. In the present case a juror might have been discharged on one of two bases: mandatory discharge under s 53A(1)(c) because of misconduct, or discretionary discharge under s 53B(c) or (d) on the basis of refusal to take part in deliberations or for another reason affecting the juror’s ability to perform his or her functions. In his reasons for refusing the discharge of the jury on 24 May 2017, his Honour made no reference to s 53A but noted the Crown’s submission that it was open to discharge a juror under either of those paragraphs of s 54B. His Honour continued:
“There is of course some information in the notes which suggest that one or two of those subsections may have been engaged. But thinking on my feet, which to a certain extent I am doing, it appears that that may be one method of proceeding. The other method might well be the majority verdicts situation in section 55F… .”
Later in his reasons, referring to the two notes MFIs 54 and 55, his Honour said:
“In my view, a reasonable interpretation of the two notes taken together is that a particular juror had a solidified view as to his or her obligation as jurors (I should say I don’t know if it is only one) that that has been informed by the person’s reluctance to find a person guilty, and other issues raised in the notes.
The frustration, self-evident in the second note written by the individual juror, in my view confirms the fact that at least the second juror is saying in not too many words, we think we have come as far as we can go. I may be wrong in that. Mr Bellanto correctly points out that we are making a lot of assumptions, and I am of course as well.
But if that is the true reflection of the state of affairs in the jury room, it appears to me that the Court could act upon either s 53B, or s 55F, and reach in effect the same result, on the assumption that the juror or jurors, about whom complaint is made, is in fact only one person, and not more.
In my view operating under s 53B, would be the less better option. I consider that so because the complaints made by the note writers are significant complaints, and require a finding that the juror has abdicated his or her responsibility or duty. They are significant findings. Of course if they have to be made, I will make them. But in my mind, the sparsity of material in the notes is such that, unless I am compelled to do so in order to arrive at a just result, I would defer from so doing if there is another way. I consider there is another way.
In my view, if the notes indicate one juror who has the issues, and the remainder do not, I would consider moving down the path of s 55F, the requisites are made out, is the proper way to approach this issue.”
Mr Brady argued that the first two notes (MFIs 54 and 55) described behaviour inconsistent with the proper discharge of a juror’s duty. They complained of behaviour on the part of at least one juror involving a breakdown in communication “due to personal prejudice and combative personality issues”, a resistance to convict someone based on religion, an unwillingness to follow the directions of the trial judge, the intentional obstruction of the jury’s deliberations, a lack of appropriate “attention and diligence” in the case and, generally, being “a hindrance”.
Mr Brady accepted that his Honour properly declined to make enquiries of the foreperson (or any other juror) about the details of these matters, consistently with the decisions in Orgles and Roberts. He submitted, however, that his Honour was then left in a position where there was a strong basis to conclude that at least one member of the jury was engaged in misconduct within the meaning of s 53A(1)(c). As to what might constitute such misconduct, he argued that guidance might be afforded by the observations of Gleeson CJ and Hayne J about the discharge of a juror for perceived bias in Wu v The Queen (1999) 199 CLR 99, [1999] HCA 52, at [9]. Postulating an incident which might give rise to that perception, their Honours said:
“If satisfied that the incident gives rise to a reasonable apprehension or suspicion, the judge would, it seems to us, be bound to discharge those of whom the apprehension or suspicion would be held (whether that is a single juror or the whole jury). No discretion would fall to be exercised in such a case.”
Of course, Wu was decided before the insertion into the Jury Act of Pt 7A and dealt with the common law power to discharge a juror.
Mr Brady noted his Honour’s response in his reasons to Mr Bellanto’s submission that the trial was flawed from the outset, which was as follows:
“In my view, the proper inference to be drawn on the limited information, is there has been some deliberation. I consider that therefore this is a case where the well has not been poisoned, to put it that way, from the very early stages, and if that is a correct descriptor, that may only have occurred during the course of these deliberations. Accordingly, on that basis I consider it is not appropriate to discharge the jury at this time.”
Mr Brady pointed out that, while that might be an appropriate response to the submission that the trial was flawed from the outset, it did not deal with the issue of misconduct under s 53A(1)(c). That provision might be invoked to deal with misconduct by a juror regardless of the state of the trial at which that misconduct occurred. Mr Brady acknowledged that if in the present case his Honour had considered mandatory discharge under the provision, he might not have taken that course. His submission, however, was that his Honour was bound to consider it.
At the trial neither Mr Bellanto nor the Crown prosecutor sought the discharge of a juror on any basis, and discharge under s 53A was not raised at all. Relevantly for present purposes, misconduct under that provision is defined as conduct giving rise to the risk of a substantial miscarriage of justice in the trial: subs (2)(b). Mr Brady submitted that the contents of the notes MFI 54 and 55, if accepted, describe a juror who is behaving in bad faith or, if not accepted, conveys that other members of the jury were misrepresenting the participation of a fellow juror or jurors, thereby unfairly discriminating against that person. He argued that that interpretation might be supported by the subsequent note (MFI 58), signed “G4 jurors (minus one)”, suggesting that the majority of the jurors had excluded one of their number from deliberations. On either approach, he argued, there would be behaviour giving rise to the risk of a substantial miscarriage of justice and amounting to misconduct.
The terms of the notes MFIs 54 and 54, together with MFI 58, fairly give rise to the inference that they amount to complaints by the majority of the jurors, who were applying themselves to their task, about obstructive behaviour by at least one of their fellow jurors. The possibility that that allegation of misbehaviour was an unfair mischaracterisation of another juror’s conduct can be put aside.
While Mr Brady’s submission was no more than that his Honour should not have ignored the possible application of s 53A(1)(c), it should be noted that in Hoang v R [2018] NSWCCA 166, N Adams J (with the agreement of Hoeben CJ at CL) referred at [132] to a “level of satisfaction such as to warrant the application” of that provision, which she described as “an evaluative process in relation to which judicial minds might differ.” Her Honour considered that the question of a “risk of substantial miscarriage of justice” called for an enquiry whether the alleged misconduct “could have affected the outcome of the trial in any way”: [132].
The utility of seeking guidance as to what might constitute relevant misconduct by analogy with the issue of reasonable apprehension of bias examined in Wu is questionable. It might also be noted that the issue of apprehended bias is expressly addressed in s 54B(b). In R v Lamb and Ors [2016] NSWCCA 135, the Court was considering the issue of risk of a substantial miscarriage of justice for the purpose of the discharge of a jury under s 53C(1)(a). It had been argued that that test might be assessed by reference to the test for the discharge of a jury adopted by the plurality in Crofts v The Queen (1996) 186 CLR 427 at 440, that is, whether there was “a high degree of necessity for the jury’s discharge.” The Court found it unnecessary to determine whether the statutory test should be considered on its own terms or whether it should be informed by the “seemingly higher” test enunciated in Crofts.
It is uncertain what the scope of s 53A(1)(c) would be in this case, particularly given the breadth of the discretionary power to discharge afforded by s 54B. In all likelihood, this is the reason why it was that provision which was referred to in argument. The bases provided in section 53B for the discharge of a juror include “any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason”: (b), refusal of the juror to take part in the jury’s deliberations: (c), or for “any other reason” affecting the juror’s ability to perform his or her functions: (d). It is not apparent that paragraph (b) has a part to play but, clearly, paragraphs (c) and (d) are relevant.
There is force in the submission of the Crown prosecutor in this Court that if the discharge of a juror in the present case were to be considered, it could have only been under that section. As his Honour noted, there was a “sparsity of material” in the two notes and it cannot be said that his Honour was required to consider discharge under s 53A, particularly in the absence of an application by either counsel to do so.
Mr Brady submitted that his Honour also fell into error in failing to consider discretionary discharge under s 53B. As has been noted, that section was raised in argument by both counsel but neither sought the discharge of a juror under it. Senior counsel for the appellant argued no more than that if the juror were discharged under that provision, the rest of the jury would require to be discharged under s 53C(1)(a).
Mr Brady argued that in the passages from his reasons quoted at [238]–[239] above, his Honour fell into error in three respects. Firstly, he assumed that there was only one juror engaged in the conduct complained of in the first two notes. Secondly, by declining to consider s 53B as an option because the notes conveyed “significant complaints”, which required “a finding that the juror has abdicated his or her responsibility or duty”, his Honour confined the operation of the section to a positive finding that a juror had breached his or her obligations. Thirdly, resort to the provision for majority verdicts in section 55F of the Jury Act was not an appropriate manner to respond to new information that a jury member was not complying with his or her oath.
As to the first matter, his Honour made it clear in his reasons that he could not be certain that it was the behaviour of only one juror which was in issue. That said, the terms of the notes MFIs 54 and 55 fairly gave rise to the inference that it was one juror and, in the event, that was confirmed by the subsequent notes. Mr Brady relied upon the last note, MFI 59, by “the one out of the 12”, asserting that there was more than one dissentient as to verdicts on some of the counts. While that may well have been so, it does not mean that other dissentients were engaging in the type of behaviour of which complaint was made. From the notes as a whole it is apparent that that behaviour was attributed to one juror only.
As to the second matter, it may be accepted that s 53B might be invoked where a juror’s behaviour was not such as to amount to a breach of his or her obligations. Nevertheless, in the present case the section was raised in circumstances where the complaints made about the juror were significant and, if discharge under the section were to be considered, could involve what his Honour properly described as “significant findings.” To that extent it can be said that his Honour did consider the issue of discharge under s 54B but, certainly, he did not pursue it because he perceived that the matter could be dealt with “another way.” This leads to the third matter raised by Mr Brady, which was at the heart of his submissions.
Mr Brady argued that it was inappropriate to resort to the availability of a majority verdict under s 55F when there was information indicating that a juror was disregarding his Honour’s directions and failing to participate appropriately in the jury’s deliberations. He submitted that the purpose of s 55F is to break a deadlock if one juror disagrees with a verdict arrived at by the others and, as he put it in written submissions, it should be available only in circumstances “where the jury members have reached an impasse whilst complying with their oaths.” He noted that, even when a majority verdict becomes available, juries are still exhorted to listen carefully and respectfully to all their members and to strive for unanimity. While a majority verdict acknowledges the disagreement of one juror, it should be on the basis that those returning the verdict have considered the views of that dissentient juror carefully.
Mr Brady also referred to the note, MFI 58, expressing the frustration of 11 of the jurors in the hope that the juror complained of could be “removed” so they could continue with their deliberations. He argued that the majority verdict direction may have been perceived as an endorsement of that request to remove a juror and may have deterred other dissenting jurors from maintaining their stance.
There is nothing in the terms of s 55F to suggest that it is confined to deadlocks when all jurors are approaching their task conscientiously. Indeed, it is clear from the Second Reading Speech in the Legislative Council relating to the Jury Amendment (Verdicts) Act 2006 (NSW), by which s 55F was introduced to the Act, that the section sought to deal with the “rouge” juror who refuses to engage meaningfully in deliberations. The Treasurer, on behalf of the Hon. John Della Bosca, said:
“The Government is of the view that majority verdicts negate the effect of the so-called "rogue juror" who may refuse to rationally engage in the jury deliberations. Judicial officers and those involved in the criminal law more generally will readily tell you of instances when a terribly long or complex trial hangs because one person is determined to be irrational.
One such story is from a prosecutor who told me of a juror who simply refused to convict because he believed that Police received a "bounty" for every successful conviction.
It is accepted by judges who sit in criminal trials that from time to time one juror may be responsible for the jury failing to agree in circumstances where, having regard to the evidence, conviction would have been appropriate.
Indeed, where information surfaces that a jury was deadlocked 11:1 and unable to reach a verdict because of the irrational views of one juror, or that juror’s inability to scrutinise the evidence objectively, this can cause a high degree of distress for victims, their families, and other jurors who have sought to act in accordance with their oath and deliver a true verdict. Such revelations severely undermine public confidence in the jury system and criminal justice system as a whole.
…
The central aim of this Bill is to reduce the number of hung juries in order to give certainty and finality to criminal proceedings; it is not necessarily aimed at achieving a greater number of convictions by majority verdict. It is to ensure that jury deliberations are not thwarted by a single person who is unwilling to engage in a proper examination of the evidence.” (Legislative Council Hansard, 9 May 2006)
Mr Brady’s argument based on the note MFI 58 that the majority verdict direction may have effectively intimidated other dissenting jurors into agreement on verdicts cannot be sustained. As noted above, the notes as a whole convey that all the members of the jury apart from the member subject of complaint were applying themselves conscientiously to their task and, no doubt, observing his Honour’s directions.
Plainly enough, the present case involved the type of “rogue juror” described in the Second Reading Speech. In all the circumstances it was not incumbent on his Honour to pursue the question of discharge of such a juror before invoking the procedure under s 55F.
Accordingly, no juror having been discharged, the discretion to discharge the whole jury pursuant to s 53C(1)(a) did not arise.
(b): failure to consider the common law discretion to discharge the jury for irregular conduct
Mr Brady’s alternative submission was that the jury should have been discharged in the exercise of the common law discretion to do so, there being a risk of a substantial miscarriage of justice because of a reasonable apprehension of bias. That apprehension was said to arise from the notes which, Mr Brady repeated, conveyed that one juror was not complying with his or her oath or the other jurors were improperly excluding that juror from deliberations. Mr Brady argued that both of those interpretations of the notes were available, so that the apprehension of bias could not safely be isolated to one juror. That being so, the only course available to meet the risk of a miscarriage of justice was the discharge of the whole jury.
I have already expressed the view that the notes do not fairly admit of an interpretation that one juror was being improperly excluded from deliberations by his or her fellow jurors. I have also expressed the view that the conduct attributed to the one juror does not raise an issue of the reasonable apprehension of bias under s 53B(b), as opposed to what might be described as other irregular conduct under other paragraphs of that section. In any event, for the reasons we have already given, it cannot be said that the test accepted in Crofts of a high degree of necessity for the discharge of the jury was met.
In written submissions the Crown prosecutor in this Court queried whether the Common Law discretion to discharge a jury has survived the enactment of the comprehensive provisions dealing with that topic in Pt 7A of the Jury Act. As that matter was not fully argued, I would prefer not to express a concluded view about it.
(c): permitting a majority verdict without considering whether s 55F(2)(a) of the Jury Act had been satisfied and without giving a Black direction
By s 55F(2)(a), it is a pre-requisite to a majority verdict that “a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings.” In his reasons for declining to discharge the jury his Honour expressly referred to that requirement. At the time he directed the jury that a majority verdict was available they had been deliberating for periods totalling, in round figures, 11 days.
Mr Brady submitted that his Honour had failed to have regard to whether a reasonable time had passed, citing Hanna v R (2008) 73 NSWLR 390; [2008] NSWCCA 173. He referred to the undoubted length and complexity, legally and factually, of the trial. He noted that his Honour’s summing up occupied close to two days of hearing and the jury had been provided with written directions of more than 50 pages, complimented by a substantial PowerPoint presentation. He also observed that the terms of the jury notes MFIs 54 and 55 did not preclude the possibility of unanimous verdicts, given that the first note disclosed that they were unanimous on two counts and “very close to unanimous on the remaining counts.”
However, in the course of argument on the application for discharge of the jury his Honour did note the length of time which had elapsed and observed that in a trial of “four or five weeks” that time conveyed on the part of the jury “a reasonable attempt to agree and to deal with their task.” Later during argument, he described it as his “instinct” that the time for majority verdicts had come. While his Honour did not expressly refer to the complexity of the trial and the substantial directions he had given the jury, it appears from those observations that he was not unmindful of those matters.
Mr Brady also submitted that his Honour should have given the jury a Black direction, and allowed time for further deliberation, before raising the possibility of majority verdicts. He also relied upon the possibility of unanimity disclosed by the first jury note, adding that the direction was clearly needed to address the concerns raised in the two notes by reminding the jurors of their obligation to decide the case in accordance with the evidence and to consider carefully the views of their fellow jurors.
As noted above ([239]), in his reasons for declining to discharge the jury his Honour thought it “quite a reasonable interpretation” of the two notes that a particular juror (assuming it was only one) had a “solidified view as to his or her obligation” which was “informed by the person’s reluctance to find a person guilty, and other issues raised in the notes.” Prior to that his Honour had noted clear authority “that it is inappropriate for a judge to place undue pressure on a jury to reach verdicts, and to pressure jury members to compromise their duty to achieve unanimity.”
In that context he referred to Burrell v R [2007] NSWCCA 65; (2007) 190 A Crim R 148, where McClellan CJ at CL (with whom Sully and James JJ agreed) observed at [295] (219) that “a Black direction may result in a miscarriage of justice if it creates a real risk of the jury failing to give the issues free deliberation….” His Honour referred at that point to the judgment of Hunt CJ at CL in R v Tangye (1997) 92 A Crim R 545. In that case the then Chief Judge (at 550) observed that in Black the High Court “stated the fundamental principle that a jury must be free to deliberate without any pressure being imposed upon them, so that individual jurors are not pressured to join in the view taken by the majority against their personal views” (referring to Black at 50–52).
In Burrell an issue arose about the appropriateness of a Black direction which had been given after the judge had received a note from an individual juror disclosing that he or she was a dissentient as to the verdict and (for reasons which need not be examined here) felt under pressure from the majority of the jurors. The Court found that the trial judge had not erred in giving the direction. McClellan CJ at CL said at [297] (219):
“The issue in the present case is whether the trial judge erred by giving a Black direction when, because of the juror’s note, he knew that the minority juror was under pressure from the majority. The giving of the direction was a matter for his Honour’s discretion. His Honour had the advantage of observing the atmosphere of the trial and demeanour of the jury. The fact that the minority juror felt pressure from the other jurors was not surprising. It does not of itself arouse concerns of a miscarriage of justice.”
What emerges from this authority is that, while a Black direction is conventionally given when a jury has indicated clear disagreement, the trial judge has the discretion whether or not to give that direction depending on the circumstances of the case at hand. In the present case his Honour had two notes from the jury conveying that there might be intractable dissent by at least one juror as to verdicts on the large number of counts in respect of which agreement had not yet been reached. The jury had been deliberating for a very lengthy period. There may have been a danger that a Black direction at that stage might place inappropriate pressure upon a dissenting juror to agree with the majority. It cannot be said that his Honour erred in the exercise of his discretion not to give the direction.
In any event, when his Honour directed the jury about the availability of majority verdicts he adopted the form of direction set out in the Bench Book, which is effectively a modified Black direction. Whilst saying that majority verdicts were available, his Honour directed that they should continue to strive for unanimity, to calmly consider the evidence, and to consider the opinions of other jurors while understanding that they should not depart from a view honestly held. In all the circumstances, it was open to his Honour to have concluded that the time had come to direct the jury about the availability of majority verdicts.
This ground also is not made out.
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Amendments
05 September 2022 - paragraph formatting
794
20
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