Clegg v R

Case •

[2017] NSWCCA 125

•

09 June 2017

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Clegg v R [2017] NSWCCA 125
Hearing dates: 11 April 2017
Decision date: 09 June 2017
Before: Payne JA at [1];
Schmidt J at [136];
Fagan J at [137]
Decision:

(1) Leave to appeal under 5(1)(b) Criminal Appeal Act 1912 (NSW) granted on grounds 2, 3 and 4;

 

(2) Leave to appeal on ground 5 refused under Rule 4 of the Criminal Appeal Rules;

 (3) Appeal dismissed on grounds 2, 3, 4 and 9.
Catchwords:

CRIMINAL LAW – appeal against conviction – two complainants – four counts of sexual intercourse with a person under the age of 16 years – four counts of indecent assault of a person under the age of 16 years – three counts of acts of indecency with a person under the age of 16 years – admissibility of rebuttal character evidence previously ruled inadmissible tendency evidence at a pre-trial hearing – question of “fundamental principle” – discontinuance of prosecution by DPP – whether miscarriage of justice – leave granted – appeal dismissed

 

CRIMINAL PROCEDURE – appeal against conviction – whether inadequate directions to jury relating to expert witness – whether miscarriage of justice – leave refused – appeal dismissed

CRIMINAL LAW – appeal against conviction – tendency evidence – whether s 97 requires proof of “sufficient evidence of distinctive features in the manner in which the offences are committed” – appeal dismissed
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Evidence Act 1995 (NSW)
Cases Cited: ARS v R [2011] NSWCCA 266
Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303
Hughes v R [2015] NSWCCA 330
R v Johnston [2004] NSWCCA 58
R v McL (Court of Criminal Appeal (NSW), 7 July 1997, unrep)
R v OGD (No 2) (2000) 50 NSWLR 433; [2000] NSWCCA 404
R v Stalder (1981) 3 A Crim R 87; [1981] 2 NSWLR 9
Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Velkoski v The Queen (2014) 242 A Crim R 222; [2014] VSCA 121
Texts Cited: Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005)
Neil Williams et al., Uniform Evidence in Australia (2015, LexisNexis Butterworths)
Category:Principal judgment
Parties: John Marshall Clegg (Appellant)
Crown (Respondent)
Representation:

Counsel:
P Tehan QC / P Skinner (Appellant)
N Adams (Crown)

  Solicitors:
Longton Legal (Appellant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2012/369151
Publication restriction: Nothing may be published that would identify the complainants: s 578A Crimes Act 1900 (NSW).
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
09 June 2015
Before:
Huggett DCJ
File Number(s):
2012/369151

headnote

[This headnote is not to be read as part of the judgment]

Mr Clegg was found guilty of 11 historical sexual assault offences in relation to two boys, JJ and JG, both at the time of the offences under the age of 16.

Mr Clegg was a brother at a boarding school for boys aged between 8 and 15 years where JJ and JG attended.

The appeal raised the following issues:

(i) whether the trial judge erred in making an adverse ruling under s 192A of the Evidence Act that the Crown would be permitted to adduce rebuttal character evidence from another boy, DJ. DJ’s evidence had been previously ruled as inadmissible tendency evidence at a pre-trial hearing. The appellant’s submission was made at a level of “fundamental principle”.

(ii) whether the fact that the DPP had subsequently discontinued the prosecution of the allegations based on DJ’s evidence meant that a miscarriage of justice occurred;

(iii) whether the trial judge should have given a specific direction to the jury about the evidence of JJ’s treating psychologist, Dr Grocott;

(iv) whether this Court should adopt the construction of ss 97 and 101 of the Evidence Act decided in Velkoski v R (2014) 242 A Crim R 222.

In relation to issue (i), per Payne JA (Schmidt and Fagan JJ agreeing)

(1) the trial judge’s advance ruling about the admissibility of rebuttal character evidence was not in breach of any “fundamental principle”: [94]-[96]

(2) sections 110(2) and (3) of the Evidence Act make clear that the tendency rule does not apply to evidence to rebut character evidence and are inconsistent with the “fundamental principle” advanced by the appellant: [81]; [85]-[86]; [92]

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 applied.

In relation to issue (ii), per Payne JA (Schmidt and Fagan JJ agreeing)

(3) the Court is not in a position to speculate about why the Crown made a decision to discontinue proceedings in respect to another complainant; that is a matter within the prosecutorial discretion of the DPP: [101]

Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 599-600 applied.

(4) there is an important difference between a case where an allegation is withdrawn by a complainant and a case where the DPP discontinues a prosecution based on that complainant: [99]-[101]

R v McL (Court of Criminal Appeal (NSW), 7 July 1997, unrep) distinguished.

In relation to issue (iii), per Payne JA (Schmidt and Fagan JJ agreeing)

(5) no arguable miscarriage of justice occurred in the failure of the trial judge to give a more extensive direction now sought for the first time in this Court: leave refused under rule 4: [124]-[125]

ARS v R [2011] NSWCCA 266 at [148] applied.

In relation to issue (iv), per Payne JA (Schmidt and Fagan JJ agreeing)

(6) the test posed by s 97 of the Evidence Act does not require a finding of “sufficient evidence of distinctive features in the manner in which the offences are committed”: [132]-[133]

Hughes v R [2015] NSWCCA 330; Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 and Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136 applied.

Velkoski v The Queen (2014) 242 A Crim R 222; [2014] VSCA 121 distinguished.

Judgment

  1. PAYNE JA: On 9 June 2015, following a trial before a jury, the appellant was found guilty of four counts of sexual intercourse with a person under the age of 16 years, four counts of indecent assault of a person under the age of 16 years and three counts of acts of indecency with a person under the age of 16 years.

  2. On 6 May 2016, the appellant was sentenced to an aggregate non-parole period of 7 years imprisonment (which commenced on 9 June 2015) with a balance of term of 4 years and 6 months imprisonment. The appellant will be eligible to be considered for release on parole on 8 June 2022.

  3. A notice of appeal was filed by the appellant on 25 November 2016. A pseudonym order was made by the trial judge in relation to Mr Clegg. Although the parties on the appeal were agreed that the appellant could be referred to by his correct name, it has recently become apparent to the Court that the trials for similar offences of two former colleagues of Mr Clegg at the school the subject of the events described in this judgment are currently before the District Court. Accordingly it is appropriate to protect the integrity of those trials to order, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), until the completion of the trials arising from the events at the school involving former colleagues of Mr Clegg, or until further order, that nothing may be published that would identify Mr Clegg or the school involved. It is regrettable that the Crown did not bring these outstanding proceedings to the attention of the Court at the hearing of the appeal. Pseudonym orders made by the trial judge in relation to identities of each of the complainants were appropriate and this Court will use the same pseudonyms for each complainant as used by the trial judge for ease of reference.

Background

Procedural history

  1. The appellant was a former brother in the St John of God Order in the Catholic Church. He was arrested on 27 November 2012 and charged with sexual assault offences alleged to have been committed in the 1980s against four young boys, known in these proceedings as MW, JJ, JF and DJ, who were boarders at the school.

  2. The Crown sought a joint trial of the allegations made by each of the four complainants for the purpose of relying upon the evidence of each boy as tendency evidence in the case of the other boys. The appellant sought orders for four separate trials on the basis that the use of tendency evidence should not be permitted.

  3. After hearing evidence and submissions over six days, Huggett DCJ delivered a judgment on 12 September 2014. Her Honour determined that the trial in relation to DJ would be held separately from a trial involving allegations by MW, JJ and JF because the evidence DJ was expected to give would not be admissible as tendency evidence in the cases concerning the other boys. The joint trial involving allegations made by MW, JJ and JF was set down to commence on 7 October 2014.

  4. An application for leave to appeal from her Honour’s ruling was refused by the Court of Criminal Appeal (Hoeben CJ at CL, R A Hulme and Davies JJ) on 27 March 2015: [2015] NSWCCA 49.

  5. The trial concerning allegations made by MW, JJ and JF took place between 13 April 2015 and 9 June 2015 before Huggett DCJ. In relation to JJ, the appellant was found guilty of three counts of sexual intercourse without consent, three counts of indecent assault and one count of an act of indecency. The appellant was found not guilty by direction of one count of indecent assault of JJ. In relation to JF, the appellant was found guilty of one count of sexual intercourse without consent, one count of indecent assault and two counts of acts of indecency. The appellant was acquitted by the jury of all charges relating to the complaints made by MW.

  6. Sentencing was deferred until the conclusion of a separate trial concerning DJ. That trial concerned one count of sexual intercourse without consent. The trial commenced on 12 November 2015. The jury was discharged following an undisclosed problem with a jury member.

  7. The trial involving DJ recommenced on 8 February 2016. However, on 23 February 2016 the jury was again discharged. Her Honour formed the view that it would not be fair to continue with the trial because DJ had informed the Crown Prosecutor in conference, prior to giving evidence, that during an identification procedure a police officer tapped on a photograph DJ was shown and he had seen the surname of the appellant on the top of his statement prepared in 2011. The officer in charge of the investigation, Detective Constable Turnbull, prepared and served a statement on the defence soon thereafter. In that statement Detective Constable Turnbull strongly denied any police impropriety concerning the identification procedure. He said DJ had fabricated his evidence of police impropriety concerning the identification procedure, that DJ’s evidence concerning the matter was unreliable and that DJ had lied in court in an attempt to:

“[P]ersuade the jury that despite his criminal convictions and drug history, that he is a man of good character; to make his complaint about the appellant sexually assaulting him appear more believable to the jury; and because he possesses an inherent hatred of police and authority.”

  1. On 29 August 2016, the Crown discontinued the proceedings against the appellant based on the allegations made by DJ.

  2. The appellant was sentenced on 6 May 2016 for 11 offences relating to the criminal conduct concerning JJ and JF of which he had been found guilty.

The School

  1. The St John of God Order, founded in Spain in 1540, is an Order of the Catholic Church. In Australia, the Order established and ran a number of schools and boys’ homes that specialised in accommodating boys with educational and behavioural problems. One of these schools was the school described by the witnesses in this case.

  2. The school opened in 1947 and closed in September 2000. It was a boarding school for boys aged between eight and 15 years. The boys lived in a number of dormitories on the grounds of the school and were grouped together depending on their age, with two to four boys sharing a room. Most of the boys returned home to their parents for the weekends. During the week the boys attended classrooms on the school’s grounds and were taught by lay teachers.

  3. There were between four and 10 brothers at the school at any one time. Each brother was allocated a dormitory and was responsible for the care and welfare of the boys living in a particular dormitory. There was also one brother who acted as the headmaster or “Prior” of the school. Generally, all the brothers lived together in their own dormitory on the grounds of the school.

Background of the appellant

  1. The appellant was born on 3 June 1953. He lived at the school from 25 May 1983 until 22 June 1985. He returned on 19 July 1986 and remained until 1 July 1989.

  2. The appellant’s position at the school was described variously as a Welfare Officer, Family Counsellor and member of the Community and Family Care Unit.

The complainants the subject of this appeal – JJ and JF

Evidence of JJ

  1. JJ was born on 29 December 1972. He began boarding at the school on 11 February 1987. He was then 14 years old. He left the school on 25 March 1988.

  2. JJ gave evidence about numerous incidents of sexual assaults carried out by the appellant and two other brothers at the school.

  3. The first incident of sexual assault occurred when the appellant invited JJ to his dormitory one afternoon for a cigarette. The appellant showed JJ a pornographic magazine in the lounge room. He also put on a video showing men and women having sex (count 5: act of indecency). The appellant pulled JJ’s pants down and rubbed JJ’s penis (count 6: indecent assault). The appellant then engaged in oral sex with JJ. JJ ejaculated. (count 7: sexual intercourse with a person between the ages of 10 and 16 under authority).

  4. The next occasion when JJ was sexually assaulted by the appellant was while he was at the appellant’s dormitory. The appellant sat on the lounge and asked JJ to move closer. The appellant pulled down JJ’s pants and started stroking his penis (count 8: indecent assault). The appellant then asked JJ to masturbate his penis and grabbed JJ’s hand and put it on his own penis (count 9: indecent assault). The appellant also performed oral sex on JJ in the lounge room. Then the appellant asked JJ to sit on his penis and they had anal intercourse (count 10: sexual intercourse with a person between the ages of 10 and 16 under authority). JJ said he felt pain when the appellant’s penis penetrated his anus and that he had blood on his underpants.

  5. On another occasion, when the appellant had confiscated JJ’s cigarettes, JJ returned to the appellant’s dormitory to ask for them back. The appellant asked JJ to come inside. The appellant asked JJ if the last sexual encounter had felt good and JJ said it did not feel good. The appellant asked JJ to kneel over the lounge. JJ put his body over the lounge and his knees on the floor. The appellant came from behind and put his penis in JJ’s anus and started thrusting (count 12: sexual intercourse with a person between the ages of 10 and 16 under authority).

  6. As a result of the sexual abuse he had suffered, JJ threw himself off a rope swing in an attempt to get out of the school. He broke his collar bone and was taken to hospital. He did not go back to the school after that.

  7. JJ gave evidence of significant difficulties in his life, including the abuse of alcohol and drugs. He was admitted to a psychiatric hospital in 2006 where he spoke to a Dr Grocott and disclosed for the first time the sexual abuse he had suffered at the school.

  8. In 2007, a private investigator named Mr Michael Eccleston was engaged by a representative of the Catholic Church to interview JJ. This interview took place on 25 February 2007. In December 2010, JJ made a statement to the police about being sexually assaulted as a child by a “Brother John” whose surname JJ did not know. On the same day JJ identified that Brother John as the appellant in a photo identification procedure which was videotaped.

Evidence of JF

  1. Since the events the subject of the convictions, JF has undergone gender re-assignment surgery and identifies as female. JF was born on 22 March 1973. JF commenced school at the school on 10 August 1987, when she was 14 years old. She left the school on 8 February 1988.

  2. JF gave evidence that the first occasion of sexual assault by the appellant was when she went to his office to get cigarettes. The appellant was standing near the door when he pulled his pants down and asked her to play with his penis (count 13: act of indecency). She said that she moved towards the door and began to masturbate him (count 14: indecent assault). The appellant then tried to push JF onto her knees but she refused and said “no look I’ll just do this” and shortly afterwards the appellant ejaculated into a handkerchief.

  3. About two or three months after starting at the school, JF was standing in front of the appellant with his penis in her hand trying to masturbate him. However, the appellant made clear that he wanted JF to perform oral sex instead (count 16: incite act of indecency). The appellant pushed JF’s shoulders down so that she was on her knees in front of the appellant and then JF performed oral sex (count 15: sexual intercourse with a person between the ages of 10 and 16 under authority). Not long after that the appellant ejaculated into a handkerchief.

  4. On the day JF left school, the appellant tried to get JF into his office and she resisted. She gave evidence at trial that she ended up punching the appellant in the face. JF was expelled for punching the appellant. That evening she walked 10 km to the train station and ended up at Newcastle train station at 2:00 am where her mother picked her up.

  5. JF stayed with her mother for a short time before running away and living on the streets of Kings Cross. The next time she saw the appellant was many years later at Centrelink in Haymarket. The appellant gave JF the address of a centre where he then worked. She said that there were two or three occasions at this centre where the appellant “basically did the same thing as he did at [the school]”, that is, he lent against the door, undid his pants, and exposed his penis and asked her to give him oral sex.

  6. JF lived on the street for about 10 years. She had a problem with drugs but at the time of the trial she had been on the methadone program for three years.

  7. In September 2011, JF made a statement to police and conducted a photographic identification procedure. She identified the appellant as the brother who had sexually abused her.

The evidence of Dr Grocott

  1. Dr Grocott was a psychiatrist at James Fletcher Hospital in Newcastle who, from 2004 to 2006, was responsible for looking after patients with drug-induced psychosis, schizophrenia and drug problems.

  2. Dr Grocott gave evidence that JJ was under her care from 29 May 2006 to 13 June 2006. She interviewed him on 31 May 2006 and she noted that his history included “sexual assault at boarding school”. She said that she had recorded that he had said he was “raped at boarding school”. She said she diagnosed him as suffering from a drug-induced psychosis.

  3. Dr Grocott also gave evidence that during JJ’s second admission, in the last week of June 2006, JJ had told her that the sexual abuse had occurred at the school he had attended which was run by the brothers of St John of God. She then contacted the Catholic Diocesan Office of Child Protection and Professional Conduct who advised that support was available for JJ. However, JJ absconded before this support could be provided.

Grounds of appeal

  1. At the outset of the hearing, grounds 1, 7 and 8 were abandoned by Senior Counsel for the appellant, Mr Tehan QC, with whom Mr Skinner appeared. In the afternoon, the Court was informed by Senior Counsel for the appellant that ground 6 (which also addressed the fresh evidence in ground 8A) would also be abandoned. Accordingly, the appellant relied on the following five grounds of appeal against his conviction:

“2. The learned trial judge erred in ruling that the Crown would be permitted to call evidence in rebuttal of good character evidence proposed to be called by the appellant

3. The learned trial judge erred in failing to give the jury any directions as to how they might use evidence of good character

4. There has been a miscarriage of justice because the appellant was deprived of calling character evidence and such evidence in rebuttal that the Crown would have called has now been demonstrated to be unreliable

5. The learned trial judge erred in failing to give the jury adequate directions in relation to the evidence of Dr Grocott

…

9. The learned trial judge erred in ruling that tendency evidence was admissible in relation to the complainants”

Leave to appeal

  1. With respect to grounds 3 and 5, the Crown submitted that leave was required under r 4 of the Criminal Appeal Rules which states:

“No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.”

  1. Further, as they raised mixed questions of fact and law, grounds 2, 3 and 4 required leave to appeal under 5(1)(b) Criminal Appeal Act 1912 (NSW). Ground 9 raised a pure question of law and did not require leave.

Grounds 2, 3 and 4 – evidence of good character

  1. As the appellant dealt with grounds 2, 3 and 4 together in oral and written submissions, I will proceed to deal with them together also.

Legal framework

  1. A defendant’s ability to adduce evidence of good character, either generally or in a particular respect, and the Crown’s ability to adduce “mirror image” evidence that the person is not of good character, is addressed by s 110 of the Evidence Act 1995 (NSW) which provides:

“(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.

(2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character.

(3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect.”

  1. The ability of the Crown to adduce rebuttal evidence that a person is not of good character is, of course, subject to the applicable rules of limitation or exclusion, in particular ss 112, 135 and 137 of the Evidence Act.

  1. Section 112 provides:

“A defendant must not be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave.”

  1. Section 135 provides:

“The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or

(c) cause or result in undue waste of time.”

  1. Section 137 provides:

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

  1. Under the previous statute law governing this issue, once the accused had raised evidence of good character, the Crown was permitted to adduce evidence for the limited purpose of negating the accused’s claim to good character. In R v Stalder (1981) 3 A Crim R 87 at 93; [1981] 2 NSWLR 9 Street CJ (Begg and Yeldham JJ agreeing) observed:

“It will be seen that from as far back as 1876 it has been part of the statute law of New South Wales that evidence as to character of an accused shall be received and dealt with as evidence on the question of guilt and that evidence as to character may cover not only general repute but habits, disposition and conduct. These prescriptions of the effect and scope of character evidence do not override the deeply rooted common law principle precluding the Crown from calling evidence of bad character solely for the purpose of seeking to establish affirmatively as part of its case in chief that the accused is a person of bad character and hence could be regarded as more likely to have committed the crime with which he is charged.”

  1. Following the decision of the High Court in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, the Evidence Act was amended to permit an accused to request an advance ruling from a trial judge about admissibility of evidence, including in relation to evidence which the Crown will be entitled to adduce if evidence of good character is adduced by the accused. Section 192A of the Evidence Act provides:

“Where a question arises in any proceedings, being a question about:

(a) the admissibility or use of evidence proposed to be adduced, or

(b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or

(c) the giving of leave, permission or direction under section 192,

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.”

The trial judge’s decision in relation to character evidence

  1. The appellant made an application for an advance ruling under s 192A about whether the Crown would be permitted to adduce evidence in rebuttal if the appellant were to adduce evidence of prior good character, being:

  1. evidence of no prior convictions, from Detective Constable Turnbull;

  2. evidence of the appellant’s “good works” relating to his years of service in the St John of God brotherhood; and

  3. evidence of five character witnesses contained in VD Exhibit 10 (which consisted of an affidavit from the appellant’s solicitor and a bundle of character references tendered by the appellant on the voir dire).

  1. Alternatively, the appellant sought a ruling under s 192A about whether the Crown would be permitted to adduce evidence in rebuttal if the appellant were to adduce evidence of prior good character limited only to Detective Constable Turnbull’s evidence of an absence of criminal antecedents and evidence from the appellant of his good works.

  2. VD Exhibit 9 was tendered by the Crown on the voir dire. VD Exhibit 9 was not before the Court on the appeal. The Exhibit apparently contained a bundle of statements from various former students from the school who alleged they had been sexually assaulted.

  3. The trial judge’s initial ruling under s 192A was that if the appellant elected to adduce evidence from the five character witnesses contained in VD Exhibit 10, her Honour would permit the Crown to lead “at least part” of the material contained in VD Exhibit 9.

  4. Her Honour ruled that the appellant could lead evidence, being Detective Constable Turnbull’s evidence of an absence of criminal antecedents and evidence from the appellant of his “good works”, without attracting rebuttal evidence from the Crown about character.

  5. Shortly thereafter, the Crown informed the trial judge that none of the witnesses whose complaints were contained in VD Exhibit 9 were available to give evidence at the trial. The Crown submitted that if the appellant were to adduce evidence of prior good character, it should be permitted to adduce hearsay evidence of the complaints through Detective Constable Turnbull under s 110(3).

  6. The trial judge ruled, under s 192A (relying upon either ss 135 or 137), that if the appellant adduced evidence of good character from the character witnesses he had identified in VD Exhibit 10, the Crown would not be permitted to adduce hearsay rebuttal evidence about good character.

  7. Her Honour stated:

“...evidence in a hearsay form from other complainants…would be potentially very damaging where those complainants can’t be cross-examined, would, in my view, create such an unfairness that my view is that the Crown should not be permitted to lead through the officer in charge, or whether it is in the Crown’s case or in reply, evidence of the same sort. It doesn’t particularly advance an argument that the accused is not a person of good character given the Crown already has three complainants saying the same sorts of things, in any event.”

  1. The next day the Crown indicated that one of the witnesses whose statement was contained in VD Exhibit 9 was now available to give evidence to rebut the evidence of good character contained in VD Exhibit 10. This witness was DJ.

  2. In her written revised ruling under s 192A made on 11 May 2015, the trial judge said of this rebuttal evidence:

“In relation to matter number three, namely the statements contained in VD Exhibit 10, I indicated that if Mr Skinner elected to call those witnesses I would allow the Crown to call evidence in rebuttal and in that regard I indicated the Crown would be permitted to lead at least part of the material contained in VD Exhibit 9.”

  1. It was common ground on the appeal that the only non-hearsay evidence relevant to rebuttal which her Honour proposed to permit the Crown to adduce was DJ’s evidence that the appellant had sexually abused him.

  2. In response to her Honour’s advance ruling, counsel then appearing for the appellant withdrew the appellant’s application to adduce the evidence in VD Exhibit 10, which contained the five references from character witnesses. He stated:

“I can indicate we will not therefore be calling any of the witnesses who have given us those character letters that were annexed to the affidavit, voir dire Exhibit 10. We won’t call them in the trial. At another time we may if it comes to that.”

Appellant’s submissions

  1. The appellant submitted that the trial judge should have heard the Crown’s proposed character evidence in rebuttal on the voir dire and only then made a ruling pursuant to ss 135 and 137 of the Evidence Act as to whether to admit the evidence. Although in his written submissions Senior Counsel for the appellant also submitted that a formal ruling under s 112 should have been made by the trial judge, no oral submissions were addressed to that topic and the content of cross-examination of the appellant about character, if any, which was proposed by the Crown was not identified.

  2. In the course of oral submissions, Senior Counsel for the appellant made two overlapping submissions about the trial judge’s advance ruling under s 192A to allow rebuttal character evidence to be adduced by the Crown.

  3. First, it was submitted that:

“…it cannot be the law that a judge who properly decides to sever an indictment, sever a charge or some charges from an indictment, can then in running be met with - and allow the Crown to bring those allegations back in.”

…

…it brings the administration of justice into disrepute if DJ, which for very good reasons had been severed out, can be used as a threat against the accused in relation to calling evidence of good character.”

  1. Senior Counsel for the appellant argued this case should be distinguished from TKWJ because:

“The position, with respect, is different where the Crown had put the trial on the indictment and the judge has made an order for severance. And the difference arises by virtue of the curial process being engaged and the judge having made the ruling that she did, that’s where the difference comes in.”

  1. Secondly, it was submitted that:

“…not only had they been severed but ultimately the prosecution of them was discontinued by the Director of Public Prosecutions. So what this Court, what the Appeal Court faces, is a situation where the appellant on trial for serious offences has been prevented from advancing a powerful body of evidence of good character because the threat that has been made to him is that a witness will be called who will give evidence of bad character, in the sense of other allegations, which had been severed out of the trial before the trial commenced in the sense of before evidence was called. Not only that, ultimately the Director of Prosecutions said ‘we’re not going to prosecute that man’.”

  1. Senior Counsel for the appellant submitted that following the Crown’s decision to discontinue the separate trial of the appellant based on the allegations made by DJ:

“…the landscape has changed and changed significantly because the allegation is not now proceeded with by the Crown. The veracity and truthfulness of DJ is in issue…”

  1. The appellant relied upon R v McL (Court of Criminal Appeal (NSW), 7 July 1997, unrep), where this Court held that the primary judge erred in allowing rebuttal character evidence to be led by a complainant who had withdrawn an allegation. There had been a miscarriage of justice because the accused in that case was deprived of leading evidence of good character in the face of a threat of an allegation which had later been retracted.

  2. The appellant submitted that counsel for the appellant at trial should not have been put in a position where it was necessary to make the forensic decision whether to call character evidence. The only witness prepared to give evidence in rebuttal was DJ and the unreliability of his evidence was not known at the time. In the appellant’s written submissions it was argued (at [43]) that:

“The circumstances relating to [DJ] … were not known at the time. Known as they are now, it is highly likely that the Crown may not have called [DJ]. After all they granted a discontinuance in relation to the trial concerning him, no doubt in large measure based upon the assessment of him as a witness made by Detective Turnbull.”

  1. It was further submitted that although counsel for the appellant at trial told the trial judge that he did not seek a character direction in relation to the evidence that the appellant had no prior convictions, he should not have been placed in this position.

  2. It is unclear whether the appellant ultimately pressed this point. It appears that Senior Counsel for the appellant may have accepted that if the appellant’s principal point was correct, this additional point did not matter and that if the principal point was not correct, there was no error in the trial judge failing to give a character direction.

Consideration of grounds 2, 3 and 4 – evidence of good character

  1. It is important to understand that the appellant’s attack on the decision of the trial judge under s 192A was made at the level of principle and was not based on an alleged misapplication of ss 135 or 137 of the Evidence Act to the content of DJ’s evidence.

  2. That is, the appellant did not submit that having regard to the specific content of the evidence proposed to be given by DJ, her Honour erred in failing to decide under ss 135 or 137 not to permit the evidence to be adduced. Rather, the submission was that regardless of the particulars of that evidence, the evidence should have been excluded either because:

  1. it was an affront to justice to permit rebuttal evidence to be given in circumstances where that evidence had been the subject of a pre-trial ruling that it was not admissible as tendency evidence (ground 2); or

  2. the fact that the DPP had subsequently discontinued the prosecution based on DJ’s evidence meant that a miscarriage of justice occurred in her Honour failing to rule under ss 135 or 137 that the evidence would be excluded if the appellant raised good character (ground 4).

  1. This is significant because the Court was not asked itself to consider the evidence of DJ and itself make an assessment about the proper operation of ss 135 or 137 of the Evidence Act in this case. Indeed, DJ’s evidence was not provided to the Court by either party, as consideration of the content of that evidence was regarded by the parties as unnecessary to decide these points of principle.

  2. The suggestion that her Honour erred in failing to consider the application of ss 135 and 137 should be rejected. It is clear that her Honour correctly understood that s 110 was not the only provision relevant to the admissibility of rebuttal evidence about good character. Section 110 provides that specific exclusionary rules do not apply to rebuttal character evidence, however, admissibility and exclusion of character evidence is addressed by other provisions of the Act; in particular s 55 (relevance) and the provisions in Pt 3.11 (discretionary and mandatory exclusions) of the Evidence Act.

  3. That this is so is clear from the decision her Honour made about the Crown’s submission that it should be permitted to lead hearsay evidence of the contents of the statements contained in VD Exhibit 9. Despite s 110(2) and (3) making clear that the hearsay rule did not apply to Crown evidence led in rebuttal of character evidence, the trial judge ruled that the Crown would not be permitted to adduce that hearsay evidence. This could only have been by reason of the application of ss 135 or 137.

  4. The appropriate starting point for addressing the appellant’s points of principle is thus that her Honour was well aware that the ruling sought under s 192A about permissible rebuttal evidence was one that concerned ss 135 and 137 of the Evidence Act.

  5. The appellant’s submission that the trial judge should have heard the Crown’s proposed character evidence in rebuttal on the voir dire, and only then made a ruling pursuant to ss 135 and 137 about whether to allow the evidence to be adduced, should be rejected. Nothing in the Evidence Act requires this. The requirements of s 189 of the Act in relation to the conduct of the voir dire were here complied with.

  6. In this case, in a voir dire prior to the trial, the trial judge had to determine whether allegations of historical child sexual assault made by MW, JJ, JF and DJ against the appellant should be dealt with at the same time, as the Crown submitted, in four separate trials as the appellant submitted, or some other number of separate trials. The trial judge was required, for this purpose, to make a determination of whether the evidence of MW, JJ, JF and DJ, which was each the subject of a number of distinct counts, should be permitted as tendency evidence. That decision involved her Honour hearing the evidence-in-chief and cross-examination of, inter alia, DJ.

  7. In the absence of any reason being advanced which had changed the position, her Honour was not required to hear that evidence again on the voir dire in relation to the good character issue. Neither, to the extent that a criticism of the way her Honour approached s 192A can be implied, was her Honour required to give any more detailed reasons for indicating that she would permit DJ to give evidence if the appellant adduced the contents of Exhibit VD 10 on the question of his good character. In the course of the trial, the appellant having waited until the case was well underway before seeking this ruling under s 192A, her Honour’s written reasons were sufficient.

  8. Having sketched this background, it is convenient then to address the two overlapping submissions of principle relied upon by the appellant.

Ground 2

  1. The appellant’s submission that “[i]t was an affront to justice to permit rebuttal evidence to be given in circumstances where that evidence had been the subject of a pre-trial ruling that it was not admissible as tendency evidence” should be rejected.

  2. The trial judge’s decision about the admissibility of DJ’s evidence as tendency evidence addressed the requirements of ss 97 and 101 of the Evidence Act. The correctness of that decision was not in issue on this appeal. Section 101 of the Evidence Act excludes the use of tendency evidence against a defendant unless the probative value of that evidence substantially outweighs any prejudicial effect it may have on the defendant:

“(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(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.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant….”

  1. The trial judge, applying s 101 of the Evidence Act, found that the evidence of DJ could not be used as tendency evidence in relation to counts involving allegations made by MW, JJ and JF. Her Honour said:

“In considering prejudicial effect, there is, in relation to DJ, a matter that does cause me considerable concern regarding prejudice. As I have raised with the parties, in my view, the admission of the evidence of DJ as tendency evidence in the trials of MW, JJ and JF would be to introduce evidence of alleged brutality and violence towards DJ in a trial of the other three complainants of a sort that forms no part of the allegations each of those three complainants make and, simply put, would be incapable of being cured by directions. In saying that, I am cognisant of the fact that similarity in events and circumstances is not a pre-condition for the admissibility of tendency evidence. For that reason, it will be my order that there be a separate trial of Count 5 [the count in relation to DJ’s complaint], but in that trial I would allow tendency evidence from either or all of MW, JJ and JF, because the prejudice I have identified does not arise in those circumstances.”

  1. Thus, the relevant prejudicial effect on the defendant identified by the trial judge for the purposes of s 101 was the extent to which that evidence “would be to introduce evidence of alleged brutality and violence towards DJ in a trial of the other three complainants of a sort that forms no part of the allegations each of those three complainants make”.

  2. When dealing with the later application for an advance ruling under s 192A in relation to rebuttal evidence from the Crown about good character, the trial judge was addressing a different question, namely whether the proposed rebuttal evidence, being the same evidence from DJ, should be excluded from evidence. The correct starting point for her Honour’s analysis was that in s 110, set out at [40] above. While limiting rebuttal evidence from the Crown concerning good character to “mirror image” evidence of good character generally or in the particular respect in which the topic has been raised by the accused, s 110 does not otherwise address the admissibility of rebuttal evidence from the Crown about good character.

  3. The critical effect of ss 110(2) and (3), for present purposes, is that the tendency rule does not apply to evidence adduced to prove that a person is not of good character.

  4. Although the issue was not addressed by the parties, there is a suggestion in Neil Williams et al., Uniform Evidence in Australia (2015, LexisNexis Butterworths) at [110-14] that it remains an open question whether, despite ss 110(2) and (3), s 101 may still remain applicable to prosecution evidence adduced for a tendency purpose under s 110.

  5. In my view, such a construction of s 110 is unlikely. The text of s 101 itself, which applies “in addition to s 97”, indicates that the operation of s 101 in relation to tendency evidence is contingent on the prior application of s 97. The construction of ss 110(2) and (3) I prefer is that those subsections, when they apply to evidence which would otherwise be subject to the tendency rule, render s 97, and thus s 101, inapplicable to prosecution evidence adduced in rebuttal of good character. Support for this construction is found in the decision of this Court in R v Johnston [2004] NSWCCA 58 at [224]-[235], which held, in relation to evidence otherwise subject to the credibility rule, that Pt 3.7 of the Evidence Act (credibility) will not operate in circumstances where Pt 3.8 (character), including s 110, applies. To the extent it is relevant, extrinsic material contained in the Australian Law Reform Commission Report 102 (completed jointly with the NSW Law Reform Commission in 2005) at 403 [12.42] also tends to support the construction I prefer in stating that “where the defendant has put his or her character in issue by leading evidence as to good character, cross-examination on those matters would be controlled by ss 110 and 112”.

  6. It is unnecessary, however, especially in the absence of submissions by the parties, to determine this issue. Even if s 101 applied to the Crown’s proposed rebuttal evidence in this case, DJ’s evidence in this case would have been admissible under s 101(3), as the evidence would contradict evidence led by the appellant that raised his good character via tendency reasoning. Having examined the proposed evidence of the appellant’s five character witnesses, that evidence was evidence of a kind referred to in s 97 of the Act that the appellant sought to have adduced for the purposes of that section: see Dictionary to the Evidence Act “tendency evidence”. In substantial part, that evidence sought to demonstrate that the appellant did not have a tendency to act inappropriately towards young boys in his care. That purpose was a tendency purpose which was more than an incidental purpose of the tender: cf R v OGD (No 2) (2000) 50 NSWLR 433; [2000] NSWCCA 404.

  7. The critical point for present purposes is that the submissions made by the appellant in support of a general rule under this ground of appeal failed to address the effect of the argument advanced on the operation of the Evidence Act. In particular, no argument was addressed to the question of whether, within the meaning of ss 110(2) and (3), there was some implied limitation on what appears to be an emphatic and unqualified statement that the tendency rule does not apply to rebuttal evidence concerning character.

  8. No authority was advanced by the appellant in support of a construction of the Evidence Act which would imply such a limitation, nor was any attempt made to identify the breadth of the limitation, save that it was accepted that the limitation would not apply in the circumstances identified by the High Court in TKWJ. There the Crown had originally determined not to attempt to lead particular evidence as it was tendency evidence and subsequently determined to adduce that same evidence in rebuttal to good character evidence.

  9. In the present case, her Honour determined that the evidence of DJ should not be permitted under s 101. In the context of the tendency issue, her Honour was satisfied that the probative value did not substantially outweigh any prejudicial effect of the evidence. That was principally because the evidence alleged much more significant brutality and violence than the evidence of the other complainants.

  10. When her Honour came to consider the same evidence as good character rebuttal evidence, the circumstances had changed. There was a new evidentiary setting in which the appellant sought to raise his good character and was proposing to do so by relying on evidence which was principally relevant based on tendency reasoning. The tendency rule did not apply to the rebuttal evidence the Crown proposed to lead on this topic. What her Honour did was to apply the relevant provisions, in ss 55, 135 and 137 to the proposed rebuttal evidence. The first integer of that exercise was to identify the relevance and probative value of the evidence of DJ.

  11. As noted at the outset, the appellant made no complaint about her Honour’s assessment of the probative value of DJ’s evidence. In circumstances where the appellant was proposing to lead evidence of his good character in a particular respect, namely his exemplary dealings with young boys over many years, the evidence of DJ was likely to be highly probative. Not allowing DJ’s rebuttal character evidence may have given the jury a false picture of the appellant’s character in a crucial respect: see generally the remarks of McHugh J on this topic in TKWJ at [90]. The prejudicial effect of that evidence identified by the trial judge for the purposes of the tendency ruling, that it related to significantly more violent conduct than that addressed by the other complainants, did not necessarily mean, when good character was the issue, that the prejudicial effect of that evidence outweighed the probative value.

  12. No submission was made by the appellant that her Honour misunderstood the tests in ss 135 or 137 or misapplied them. Indeed, as I have noted above, the appellant did not put the evidence of DJ before the Court, merely her Honour’s description of the violent sexual assault that the evidence addressed.

  13. The appellant’s submission was made at a level of “fundamental principle”. In my view, that submission is contrary to the terms of the Evidence Act and the decision of the High Court in TKWJ.

  14. There is no warrant for imposing a statutory gloss on the Evidence Act. When evidence meeting the description in s 110 of the Evidence Act is engaged, the tendency rule does not apply to such evidence. That implies, at the very least, that some evidence, inadmissible as tendency evidence, may be admissible as rebuttal evidence in the event that an accused chooses to raise his or her good character generally or in a particular respect. There is no reason advanced by the appellant for why that clear statutory implication should be ignored or restricted, other than by the Evidence Act itself.

  15. Although s 112 of the Evidence Act was raised as potentially relevant in the appellant’s written submissions, it was not addressed in oral submissions. To the extent that s 112 had any relevance to the appellant’s request for an advance ruling under s 192A, it could not be said that the trial judge was not completely apprised of the requirement for leave under that section. Section 112 can thus be put to one side for the purposes of this argument.

  16. The decision of the High Court in TKWJ also weighs heavily against the acceptance of the appellant’s suggested fundamental principle. The trial judge ruled that DJ’s evidence in this case was admissible as rebutting the appellant’s good character evidence. The fact that DJ’s testimony related to a charge that had been severed from the indictment did not disqualify that evidence from being admissible as rebuttal character evidence.

  17. In my view, there is no relevant distinction in considering the admissibility of rebuttal evidence about good character between evidence which had previously been excluded as tendency evidence by the unilateral decision of the Crown, as in TKWJ, or by order of the Court, as here. In each case the circumstances of the admissibility of the evidence needs be addressed for a separate purpose under the provisions of the Evidence Act, relevant for that particular purpose.

  18. Evidence excluded by the Court or by decision the Crown as tendency evidence is capable of being adduced to rebut evidence of good character, unless a relevant rule of exclusion or a discretion under the Evidence Act applies. There is no gloss upon those provisions to the effect that once evidence is excluded as tendency evidence by the Court, that the evidence is necessarily inadmissible to rebut evidence of good character.

  19. I would grant leave to appeal but dismiss ground 2.

Ground 4

  1. The appellant’s submission that the fact that the DPP had subsequently discontinued the prosecution based on DJ’s evidence meant that a miscarriage of justice occurred in her Honour failing to rule under ss 135 or 137 that the evidence would be excluded if the appellant raised good character should also be rejected.

  2. There is an important and relevant distinction to be made between the legal effect of a withdrawal of allegations by a complainant and a decision by the Crown not to prosecute.

  3. McL involves the former situation, where this Court held that in circumstances of a subsequent withdrawal of an allegation by the complainant there was a miscarriage of justice.

  4. In this case DJ has never withdrawn his allegations. This Court is not permitted, nor for that matter in a position, to speculate about why the Crown made a decision after the trial before her Honour to which this appeal relates, to discontinue proceedings concerning DJ. That decision was a matter within the prosecutorial discretion of the DPP: Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48 at 94-5; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 599-600.

  5. Further, Detective Constable Turnbull’s personal view about DJ’s credit is irrelevant to this appeal. It is, perhaps, remarkable that a police officer investigating claims of serious child sexual assault thought it appropriate to make a statement as part of the police brief expressing personal views about the credibility of a complainant. As Detective Constable Turnbull was not a party to these proceedings and made no submissions about the matter it is inappropriate to do more than record my view that it would be a truly extraordinary case where it was appropriate for an investigating police officer to serve a statement, purportedly as part of the prosecution’s duty of disclosure, expressing personal views attacking the motivation and credibility of an alleged victim of sexual assault. It appears to have occurred here because, in responding to DJ’s allegations of police impropriety in the investigation, the Detective went beyond refutation of the particulars asserted by DJ and attacked DJ’s bona fides generally.

  6. In the event that his evidence had been available before the trial judge, Detective Constable Turnbull’s personal opinion about DJ’s credibility would not have been admissible.

  7. I do not accept that the events described in the evidence would have affected the Crown’s decision to call DJ to give evidence in rebuttal, had they been known at the time. I do not accept that those events could properly have led her Honour to have changed her decision about the non-exclusion of DJ’s evidence under ss 135 or 137 of the Evidence Act.

  8. In summary, the circumstances of this case, including the evidence from Detective Constable Turnbull and the discontinuance of the DPP’s case at a later time, do not lead me to conclude that there has been a miscarriage of justice.

  9. I would grant leave to appeal but dismiss ground 4.

Ground 3

  1. Ground 3 can be addressed shortly. The appellant submitted that “even though the appellant’s good character was not put in issue by adducing evidence of no prior convictions, the trial judge still had a duty to direct the jury on how to deal with that evidence”. That submission should be rejected in this case.

  2. As I have said, it was ultimately unclear whether if the Court concluded that the matters raised in grounds 2 and 4 were not soundly based, the appellant submitted that there was a separate error in the trial judge failing to give a character direction.

  3. Her Honour permitted evidence to be adduced that the appellant had no prior convictions, had engaged in “good works” and had “never breached his vow of chastity”. The trial judge did not regard this as deliberately raising good character generally or in a particular respect. Accordingly, the Crown was not permitted by the trial judge to call hearsay rebuttal evidence or rebuttal evidence from DJ.

  4. That was a very favourable outcome for the appellant. In those circumstances, where the appellant’s counsel expressly stated that he was not seeking such a direction, there was no error in her Honour failing to give one.

  5. I would grant leave on ground 3 but dismiss the appeal on that ground.

Ground 5 – the learned trial judge erred in failing to give the jury adequate directions in relation to the evidence of Dr Grocott

  1. The appellant submitted that the trial judge should have given a specific direction to the jury about the evidence of Dr Grocott. Although no direction was sought at the trial, in this Court Senior Counsel for the appellant handed up a document outlining directions which he submitted should have been given by the trial judge:

Directions which should have been given on Dr Grocott’s evidence:

1. Ordinarily, witnesses are not allowed to give their opinions in court. They must confine their evidence to their own observations. This is because it is you the jury who are the judges of the facts.

2. However, the law says that persons with specialized knowledge or training are allowed to give their opinions about matters within their field of expertise, if that may assist you in making your decision.

3. In this case, Dr Grocott has given evidence of her opinion as to whether JJ was delusional at the time he told her that he had been sexually abused at school.

4. In assessing her opinion it is important that you keep in mind the following matters.

5. First, you are not bound to accept the evidence of Dr Grocott. Indeed, you should not be overawed by Dr Grocott’s evidence merely because she is an expert witness. That is because as I said, you are the judges of this case. And it is for you to decide what evidence you accept or reject.

6. Second, and consistent with what I have just told you, it for you to decide whether Dr Grocott’s evidence is credible and what weight should be given to it. You can only do that if you are satisfied of the underlying facts upon which her opinion is based. If you are not satisfied of those facts you are entitled to reject her evidence.

7. Third, in assessing her evidence you are entitled to take into account her qualifications, her demeanour, the way she expressed her opinions, the quality of her reasons of those opinions, the facts on which they were based and how she responded to cross examination.

8. Fourth, Dr Grocott’s evidence cannot be used by you to find, as a matter of fact, that what JJ said to her about being sexually abused at school, was in fact the truth. The evidence of Dr Grocott can only be used by you in a limited way. That is, if you accept her evidence that JJ was not delusional, then that is a matter which might be used by you as relevant to JJ’s credit.

9. Finally, however remember that it for you the jury to decide the facts in this case not Dr Grocott.

Relevant law

  1. Particularly relevant to this issue are sections ss 108(3) and 108C(1) of the Evidence Act which provide:

“108 Exception: re-establishing credibility

…

(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if:

(a) evidence of a prior inconsistent statement of the witness has been admitted, or

(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,

and the court gives leave to adduce the evidence of the prior consistent statement.

108C Exception: evidence of persons with specialised knowledge

(1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if:

(a) the person has specialised knowledge based on the person's training, study or experience; and

(b) the evidence is evidence of an opinion of the person that:

(i) is wholly or substantially based on that knowledge; and

(ii) could substantially affect the assessment of the credibility of a witness; and

(c) the court gives leave to adduce the evidence.”

The trial judge’s decision in relation to Dr Grocott’s evidence

  1. In Dr Grocott’s statement she said at [26]:

“As [JJ’s] treating psychiatrist, I had a professional responsibility to form an evidence based opinion about the content of his [JJ’s] stated belief that he had been ‘raped at boarding school’.”

  1. During examination-in-chief Dr Grocott gave the following evidence in relation to that statement :

“Q. What does the phrase ‘evidence based opinion’ mean?

A. I needed to make an opinion based on evidence about whether I thought that this stated belief was possibly true, was a delusion or whether he was making it up, because depending on what I thought was the reason for him making the statement, that would direct my medical management of this case.”

  1. She went on to say that:

“Q. What was your opinion as to whether or not the belief was delusional?

A. My opinion is based on the evidence I had and the way the man was presenting was not delusional in any other way was this likely to be a delusion.

Q. Why did you come to that conclusion or form that belief?

A. Because I basically saying [sic] he was acting normally in every other manner, so he was interacting normally with people and was not guarded and wasn’t speaking in a crazy manner and didn’t have any other ideas and wasn’t showing any other hallucinations. So he was normal in every other aspect, and also the fact that when he dealt with the psychological issues, he acted like a person who was in pain. Some people if they have delusion and all sorts of weird stuff, it’s often not given with much emotion another than usually anxiety with paranoia, but when a person says I don’t want to talk about that problem, it was there but I feel too ashamed or guilty or uncomfortable because of it, that’s more in keeping with an actual experience than a delusion.”

  1. In her Honour’s summing up she told the jury:

“In relation to [JJ], the Crown submits the evidence of Dr Diane Grocott provides some support for [JJ’s] allegations. In that regard the Crown relies particularly upon Dr Grocott’s evidence to the effect that when [JJ] disclosed to her that he had been sexually abused at school, he did not present as being delusional and he displayed appropriate emotion, including shame, guilt, and emotional pain, when disclosing that complaint. Dr Grocott also stated that [JJ’s] delusional or bizarre beliefs dissipated over time, and when he had recovered from a psychotic episode [JJ] displayed insight that his bizarre delusions were not based in reality but he continued to affirm his belief that he had been sexually abused at school. Understand, of course, that Dr Grocott cannot tell you whether what [JJ] was disclosing – namely sexual abuse at school – was in fact based in truth. It is your task to consider whether the Crown has proved all or any of the allegations made by [JJ], but the Crown relies upon Dr Grocott’s evidence as providing some support to [JJ’s] allegations.”

Appellant’s submissions

  1. The appellant submitted that the trial judge should have directed the jury about the expert evidence of Dr Grocott in the terms outlined above.

  2. This was because, it was submitted, the direction that was given:

  1. failed adequately to emphasise that Dr Grocott’s evidence should not be used in support of the allegation by JJ that he had been sexually assaulted at school; and

  2. failed adequately to emphasise that Dr Grocott’s evidence could not be used to buttress either the reliability or credibility of JJ.

Consideration of ground 5 – the learned trial judge erred in failing to give the jury adequate directions in relation to the evidence of Dr Grocott

  1. In the atmosphere of the trial, experienced criminal counsel appearing for the appellant did not think it necessary to seek the extensive additional direction about Dr Grocott’s evidence advanced for the first time in this Court.

  2. The failure to seek such a direction was no doubt due to the fact that the relevant evidence given by Dr Grocott was relied upon by the Crown in the way described by her Honour, merely as providing “some support” for JJ’s allegations, in that he did not present as being delusional when disclosing the complaint of sexual abuse.

  3. The trial judge was astute to inform the jury, in simple but emphatic terms, that Dr Grocott’s evidence could not be used in deciding whether JJ’s evidence about sexual abuse by the appellant was true. Her Honour emphasised that it was the task of the jury to consider whether the Crown has proved all or any of the allegations made by JJ. The limited support Dr Grocott’s evidence provided was confined to the topic of whether JJ presented as delusional when making a complaint about the appellant’s sexual abuse.

  4. In ARS v R [2011] NSWCCA 266, Bathurst CJ summarised the relevant authorities regarding the effect of r 4 and observed the following at [148]:

“… the following matters are important in considering the operation of r 4:

The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA  [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170].

The applicant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21].

A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61].

An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130].”

  1. In my view there was no arguable miscarriage of justice in the failure of the trial judge to give the more extensive direction now sought for the first time in this Court. No objection was taken, nor was any request made for a redirection as to Dr Grocott’s expert evidence by counsel for the appellant at trial as to the trial judge’s summing up.

  2. In the present case, experienced criminal counsel did not object at trial to the direction given about Dr Grocott. In the atmosphere of the trial no doubt that was for the reason that the direction given adequately addressed the use which the jury could legitimately make of that evidence.

  3. Under r 4 of the Criminal Appeal Rules leave should be refused in relation to ground 5.

Ground 9 – the learned trial judge erred in ruling that tendency evidence was admissible in relation to the complainants

Relevant law

  1. Section 97(1) of the Evidence Act provides:

“(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:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(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.”

Trial judge’s decision in relation to tendency evidence

  1. In her Honour’s judgment dated 12 September 2014 she made the following findings in relation to tendency evidence:

“The Crown, in arguing that the evidence has significant probative value, does not rely on a case of striking similarities but rather on a pattern or system of behaviour or modus operandi in the accused’s behaviour. As I have already referred, for the evidence to be admissible the authorities have made clear there do not have to be striking similarities or even closely similar behaviour under s 97.

I am of the view that the evidence of the four complainants does establish a pattern of conduct by the accused and that the existence of such a pattern could rationally affect the assessment of the probability of the facts in issue that I have identified earlier. I am of the view that there are a number of features of the alleged conduct and of the events surrounding the conduct described by each complainant which do involve closely similar conduct on the part of the accused. The decision to admit the evidence which evinces a tendency to act in a particular way and with a particular state of mind is not dependent on a finding of striking similarities.

The fact the alleged sexual acts are not identical does not deplete the evidence of its probative value. The determine the matter [sic] by isolating only identical acts would focus too narrowly upon a tendency to engage in a sexual act in a particular fashion. In my view, whilst there are differences in the complainants’ accounts as to the nature of the conduct undertaken and the circumstances in which that conduct occurred the evidence is capable of establishing a sexual interest by the accused in boys who were students at [the school]. In my view, the probative value of the evidence is significant.”

Appellant’s submissions

  1. In the course of oral submissions on this ground it became clear that the appellant was relying solely on Velkoski v The Queen (2014) 242 A Crim R 222; [2014] VSCA 121as authority for the proposition that satisfaction of the test posed by s 97 of the Evidence Act required a finding of “sufficient evidence of distinctive features in the manner in which the offences are committed”.

  2. Senior Counsel for the appellant accepted that his submission that s 97 of the Evidence Act required a finding of “sufficient evidence of distinctive features in the manner in which the offences are committed” was inconsistent with a number of decisions of this Court, such as Hughes v R [2015] NSWCCA 330; Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 and Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136.

  3. He accepted that the submission he made in relation ground 9 was a formal submission only in the knowledge that the High Court was reserved on its decision in the appeal from this Court in Hughes on the question, inter alia, of whether the approach in Velkoski or that adopted in the NSW authorities was correct.

Consideration of ground 9 – the learned trial judge erred in ruling that tendency evidence was admissible in relation to the complainants

  1. The appellant was correct to accept that it is clear on the current state of authority in NSW that satisfaction of the test posed by s 97 of the Evidence Act does not require a finding of “sufficient evidence of distinctive features in the manner in which the offences are committed”.

  2. The Court was not invited to reconsider the point in this case, but simply to note the submission made to protect the appellant in the event that the High Court in Hughes were to prefer the approach in Velkoski to that adopted in the NSW.

  3. For these reasons ground 9 should be dismissed.

Orders

  1. For the foregoing reasons I propose the following orders:

  1. Leave to appeal under 5(1)(b) Criminal Appeal Act 1912 (NSW) granted on grounds 2, 3 and 4;

  2. Leave to appeal on ground 5 refused under Rule 4 of the Criminal Appeal Rules;

  3. Appeal dismissed on grounds 2, 3, 4 and 9.

  1. SCHMIDT J: I agree with Payne JA.

  2. FAGAN J: I agree with Payne JA.

**********

ADDENDUM 19 June 2017

On 9 June 2017 the trial judge presiding over the ongoing proceedings described in [3] informed this Court that parties were content for the non-publication order regarding the offender's name to be lifted. Accordingly, the anonymisation of Mr Clegg has been removed in the coversheet, headnote, [3] and [25].

Amendments

19 June 2017 - Publication restriction removed – judgment republished

Decision last updated: 19 June 2017

Most Recent Citation
Cases Citing This Decision

5

R v Wiggins (No 7) [2022] NSWSC 1249
R v Cannon (No. 2) [2020] NSWDC 356
Pethybridge v R [2020] NSWCCA 247
Cases Cited

21

Statutory Material Cited

5

TKWJ v The Queen [2002] HCA 46
Mraz v The Queen [1955] HCA 59
TKWJ v The Queen [2002] HCA 46