Jones v R

[2014] NSWCCA 280

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Jones v R [2014] NSWCCA 280

Hearing dates:

10 October 2014

Decision date:

01 December 2014

Before:

Gleeson JA at [1]
Schmidt J at [2]
Bellew J at [3]

Decision:

1)  Leave to appeal on the fourth issue is refused.
2)  Leave to appeal on each of the first, second and third issues is granted.
3)  The appeal is dismissed.

Catchwords:

CRIMINAL LAW – evidence – tendency evidence - applicant indicted on multiple counts of sexual assault involving three complainants – Crown relied upon tendency evidence and opposed separation of counts – suggestion of concoction or contamination – where primary judge found that there was no evidence of concoction or contamination – whether such finding open on the evidence

CRIMINAL LAW – evidence – tendency evidence - applicant indicted on multiple counts of sexual assault involving three complainants – Crown relied upon tendency evidence and opposed separation of counts – suggestion of concoction or contamination - relevance of the application of common law principles in determining the admissibility of tendency evidence

CRIMINAL LAW – evidence – tendency evidence - applicant indicted on multiple counts of sexual assault involving three complainants – Crown relied upon tendency evidence and opposed separation of counts – suggestion of concoction or contamination – whether concoction or contamination were matters going to reliability and credibility – whether they were matters which were relevant to a determination of the probative value of the evidence

Legislation Cited:

Crimes Act 1900 NSW
Criminal Appeal Act 1912 NSW
Evidence Act 1995 NSW
Court Suppression and Non-publication Orders Act 2012

Cases Cited:

AE v R [2008] NSWCCA 52
BJS v R [2011] NSWCCA 239
BJS v R [2013] NSWCCA 123
BP v R; R v BP [2010] NSWCCA 303
DAO v R [2011] NSWCCA 63; (2011) 81 NSWLR 568
Director of Public Prosecutions v Boardman [1975] AC 421
DSJ v R; NS v R [2012] NSWCCA 9; (2012) 84 NSWLR 758
FB v R; R v FB [2011] NSWCCA 217
Hoch v The Queen [1988] HCA 57; (1988) 165 CLR 292
Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700
Saoud v R [2014] NSWCCA 136
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363

Category:

Principal judgment

Parties:

Marc Andrew Jones - Applicant
Regina – Respondent

Representation:

Counsel:
D G Dalton SC - Applicant
T Smith – Respondent

Solicitors:
Mark Mulock & Co - Applicant
Solicitor for Public Prosecutions - Respondent

File Number(s):

2012/394475

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Date of Decision:

24 February 2014

Before:

Judge Blackmore SC

Judgment

1. GLEESON JA: I agree with Bellew J.

2. SCHMIDT J: I agree with Bellew J.

3. BELLEW J: MAJ (“the applicant”) seeks leave, pursuant to s. 5F of the Criminal Appeal Act 1912, to appeal against orders made by his Honour Judge Blackmore SC in the District Court:

1. allowing the Crown to rely upon particular evidence as tendency evidence; and

2. declining to grant a separate trial of any of the counts in the Indictment, and ordering that all counts be determined together.

BACKGROUND

4. The applicant has pleaded not guilty to ten counts of aggravated indecent assault, each being an offence contrary to s. 61M(2) of the Crimes Act 1900.

5. The three victims of the alleged offending, to whom I shall refer as JA, DA and DMA, are brothers. At the time of the alleged offending the applicant was in a relationship with TS, the mother of the victims. The applicant is not the father of any of the victims, although he and TS had a daughter, from their relationship to whom I shall refer as T.

6. In 2012, when the allegations against the applicant were first raised, TS was in a relationship with a person to whom I shall refer as W, and who is apparently a police officer.

7. The counts in the Indictment presented against the applicant may be summarised as follows:

1. each of counts 1 to 7 allege an offence committed between 1 January 2002 and 31 August 2003 against JA;

2. each of counts 8 and 9 allege an offence committed between 1 January 2003 and 31 August 2003 against DA; and

3. count 10 alleges an offence committed between 1 January 2002 and 31 December 2002 against “DMA”.

8. On 31 January 2014, the Crown issued three tendency notices pursuant to s. 97 of the Evidence Act 1995 NSW (“the Act”). Paragraph 2 of the first notice was in the following terms:

“The tendency sought to be proved is his/her tendency to act in a particular way, namely to touch and masturbate (JA) and whisper into his ear and cause him discomfort.”

9. Paragraph 2 of the second notice was in the following terms:

“The tendency sought to be proved is his/her tendency to act in a particular way, namely to touch and masturbate (DMA’s) genitals, pull down his pants, and whisper into his ear and cause him discomfort.”

10. Paragraph 2 of the third notice was in the following terms:

“The tendency sought to be proved is his/her tendency to act in a particular way, namely to pull (DA’s) pants down and to touch and masturbate (DA’s) genitals.

THE PROCEEDINGS BEFORE THE PRIMARY JUDGE

The Crown case

11. When the matter came before the primary judge on 18 February 2014, the Crown outlined the case against the applicant as follows (T6 L40-49):

“The basic case is that (TS) is the mother of the three complainants, she commenced her relationship with the accused person (the applicant) which ended towards the end of August, hence the 31 August date in the indictment. They moved to an address in Georges Hall and it is said that whilst at that premise the accused assaulted each of the three boys of the family unit, at that stage, he performing the role of if you like, of father figure, he clearly had them under his supervision. We say that the commonality of the allegations is that he went into the bedroom of these young boys at night and effectively touched their genitalia and masturbated them under the blanket. That is the common allegation.”

12. In relation to the three tendency notices, the Crown said (T7 L9-23):

“In respect of the tendency notice, of course, we say in effect that he has a tendency to act upon his sexual attraction to young boys by assaulting them in the allegations set out in counts 1 to 10. In respect of the additional witnesses over and above the boys, that is the grandmother and the mother, part of the ..(not transcribable).., which one likes, is that in respect of two of the boys they talk about the accused person whispering in their ears at the time. They don't say they remember specific words said but say that they feel uncomfortable, that's their feeling about what was happening at that stage. The grandmother for instance at para 10 in her statement, says, "I see on one occasion-" outside of the charges period, "-him whispering into (JA's) ear and I say, what's you doing and he stops". That lends support, we say, to a tendency or propensity to act in that way as part of the offending. (TS) talks about (the applicant) being absent from the bed during the evening and having entered (JA')s bedroom. The version being given of course is to comfort (JA) who is crying.”

13. In response to an inquiry from the primary judge about the circumstances in which the complaints first emerged, the Crown said (T7 L44 - T8 L11):

“The allegations come about in this way, is that they say that in December of 2012 at a family barbeque at the then house they are living at, (JA) makes a disclosure as a result of a discussion about the daughter, (T). (T) being a younger daughter who is the natural daughter of the accused person (the applicant) and (TS) and her behaviour, and there's some discussion around the concerns about that and (JA) is said to blurt out that he had been touched by (the applicant) and that he hated him. As a result of that the mother makes a general inquiry and the two other boys who are present nod or confirm that they likewise had been touched, all boys say that they were either asked not to say anything or they were scared of (the applicant) and didn't mention these things. In fact one of them says he simply wanted to try and forget it but it came to light in this way when the protection of the daughter, if you like, was under discussion and that's how the disclosure is made, the police being contacted by the parents two days later on 6 December. And then you will see that the boys make statements on 12 and 18 December respectively and I think there's one then in February which is a clarifying statement of, I think it's (DA). So that's how the disclosure comes about your Honour in 2012.”

14. It was the Crown’s position before the primary judge that the evidence of each of the three victims was admissible as tendency evidence and that accordingly, the trial of the ten counts contained in the Indictment should proceed together. That was opposed by counsel for the applicant on the basis that (inter alia):

1. the evidence which was relied upon was not tendency evidence;

2. if the evidence was tendency evidence, it did not satisfy the provisions of s. 101 of the Act.

15. The applicant also initially raised an issue as to whether reasonable notice had been given by the Crown of its intention to rely upon tendency evidence as required by s. 97(1)(a) of the Act. However, counsel appearing for the applicant before the primary judge expressly abandoned any reliance upon that matter (at T6 L18-19).

16. A separate issue was raised before the primary judge concerning the validity of the tendency notices. In essence, it was submitted by counsel for the applicant that the form in which the notices had been drafted did not signal an intention to adduce tendency evidence from one victim in support of a charge involving a different victim. The Crown explained (commencing at T13 L11) that this was not the way in which the notices were to be construed, following which counsel for the applicant indicated (at T14 L3-5 and again at T15 L12-14) that he was content to proceed on that basis.

17. At the commencement of the proceedings before the primary judge, the Crown tendered a number of documents, including the statements of each of the three victims as well as the statement of TS. At that point, counsel then appearing for the applicant indicated that he did not wish to adduce any evidence and did not propose to cross-examine any of the victims. However, following an exchange with the primary judge, counsel revised that position and indicated that did wish to cross-examine them.

The evidence of TS

18. TS made a statement to police on 18 December 2012 which was before the primary judge and which was also before this Court on the hearing of the application for leave to appeal. TS did not give oral evidence before the primary judge.

19. In paragraphs (40) and following of her statement, TS said that following her separation from the applicant, she came to an arrangement whereby the applicant would have fortnightly access to T. She stated that over a period of time she became concerned about the deterioration in T’s behaviour, and had developed a particular concern that such deterioration may have been linked to T’s treatment by the applicant.

20. At paras. (47) and following of her statement TS recounted a telephone call that she received in late 2012 from the applicant’s then partner, who expressed concern about the behaviour of both T and the applicant. TS then said the following at paras. (48)-(49):

“On the evening of the 4th of December 2012, we were having a family BBQ at (our address). I was talking to (DMA), (DA) and (JA) about my concerns over T’s behaviour and the possibility that it may have been linked to (the applicant). As I was speaking to them, (JA) said to me:

‘Mum, (the applicant) has hurt me. He has touched me.’

I was in total shock at this stage and felt physically sick and helpless. I said to (DA) and (DMA):

‘Has he touched you?’

(DA) said:

‘He touched me.’

I said:

‘What did he do?’

(DA) wouldn’t reply.

I said to (DMA):

‘Did he touch you?’

(DMA) said:

‘Yes, he used to ‘dack’ us.’

I said:

‘Did he touch you?’

(DMA) just put his head down and looked away.

I spoke to (W) and told him what the boys had to (sic) spoken to me about. (W) spoke to the boys on the back verandah, whilst I went inside the house.”

The evidence of JA

21. JA provided a statement to the police on 12 December 2012. Having set out the allegations of sexual assault by the applicant, he said the following at para (26):

“It was this year after talking to Mum and (W) and then (DA) and finding out that he was also abused by (the applicant) I decided that I should tell police what happened to me and make a statement. When we were talking we also spoke about (T) and some of the problems that she was having which includes pooing herself which made me worry that (the applicant) might be hurting her. (The applicant) also has a girlfriend named (S) who has a young son named (B) and I’ve heard that (the applicant) is dacking (B) the same as he did to us and I am worried that (the applicant) might also be doing more to (B)”.

22. JA gave oral evidence before the primary judge. He said (commencing at T6 L1) that it was after his mother had expressed her concerns about T that he disclosed what had occurred between himself and the applicant. He said (T6 L50 – T7 L4) that he was “pretty sure” that when he did so, the other two victims were also present. That account is consistent with the statement of TS. It is also generally consistent with the accounts of DA and DMA which are discussed below.

23. JA agreed (T8 L5-10) that he decided to make a statement to police “after talking to mum and (W) and then (DA)”. He was adamant (T8 L14-15) that although he had learned from DA that he (DA) was also sexually abused by the applicant, he did not tell DA the same thing about himself. He could not remember the details of the conversation that he had with DA in that regard (T8 L46-49).

24. In cross-examination, JA denied (commencing at T10 L25) that the allegations against the applicant had been discussed “as a family”. He said (T10 L38-44) that after disclosing the applicant’s alleged behaviour to TS, an appointment had been made for him to attend Campbelltown Police Station to make a statement. He agreed (T10 L49 – T11 L8) that W had reassured him about the process of taking the statement, but stated that he did not speak to DA about it (T11 L14-18). It was not suggested to him that he had discussed, with W, any aspect of the allegations prior to making his statement.

25. JA said (T11 L30-34) that after he made a statement to the police he was given a copy of it which he took home. He said (T11 L36) that although he told TS that he had made a statement, he did not show it to her and did not tell her where he was going to keep it (T11 L48-49).

26. JA agreed (T12 L4 and following) that DA and DMA had also made statements to police but said that he was not sure of where these statements were kept. He said he had not been shown the statements and was only “guessing” that DA and DMA had made them (T12 L36-37). No suggestion was put to JA that any part of his statement had been tailored having regard to the contents of statements made by DA and/or DMA.

27. It was not suggested to JA that his evidence was concocted or contaminated, nor was it suggested to him that his complaint against the applicant was motivated by what TS had said about T. His evidence as to discussions having taken place was limited to his reference (at T8 L14-15) to the fact that he had learned from DA that he had been allegedly sexually assaulted by the applicant. However, JA stated unequivocally that he did not tell DA the same thing about himself. This issue was not further pursued in cross-examination.

The evidence of DA

28. DA also made a statement on 12 December 2012. Having set out the allegations of sexual assault against the applicant, he said the following at para (13):

“It was only about a week ago that I told anyone about what happened. We were at dinner. There at the time was my stepfather (W), Mum, (DMA) and (JA). We were talking about T because we were all a bit worried about her behaviour after she comes home from visiting (the applicant). (JA) came out and said ‘(the applicant) used to touch me. I hate him.’ I am not 100 per cent sure what else (JA) said. Mum asked me if (the applicant) used to do anything to me. I said, ‘he used to touch me as well.’ Mum and (W) spoke to me later separately and I told them what (the applicant) had done in more detail the same as in my statement.”

29. That account of the circumstances in which the allegation emerged was consistent with that of TS, as well as with those of JA and DMA.

30. DA also gave evidence before the primary judge. When cross-examined he agreed (commencing at T16 L30) that TS had spoken of her concerns about T at a family dinner, and in particular had expressed a concern that the deterioration in T’s behaviour may be linked to the applicant. DA also agreed that TS had spoken of the suggestion that B (the applicant’s son from another relationship) was also the subject of sexual interference by the applicant. He agreed that it was following this that JA had said (in his presence as well as that of DMA) that the applicant had interfered with him (T18 L7-17).

31. DA agreed (T18 L7-8) that he had heard what JA had said on that occasion. It was not suggested to him that he had ever spoken with JA about the allegations, be it before or after they were raised. He denied speaking with DMA about the matter (T21 L3-5). He said that he did not think that any aspect of the allegations was discussed between the time at which they were first raised and the date on which he made his statement to the police (T20 L28-41). It was not put to DA that his motivation in making the allegation against the applicant arose from what was said by either of his brothers, or TS.

The evidence of DMA

32. DMA made a statement to the police on 18 December 2012. Having recounted the allegations of sexual assault by the applicant, he said the following at paragraph (16):

“A couple of weeks ago the family was talking about (T) and her behaviour which she has been referred to a specialist for and the fact that Mum thought that (T) may be being abused. (T) is very attached to her father, often saying that we or Mum doesn’t love her like he does and that she wants to live him and she has outbursts wanting to be with him particularly after coming back from seeing her father. While we were talking about this we found out that (the applicant) had done some things to (JA) that Mum knew about a few years ago. When I heard this I told Mum and my step Dad (W) that (the applicant) used to also pull down my pants and that he had touched me. At that time my twin (DA) also told us that he had had his pants pulled down (the applicant). As a family it was decided that we should report it to police.”

33. Once again, the account is generally consistent with that of TS, save for the fact that DMA said that he told TS that the applicant had touched him. This is contrary to the statement of TS, who said that when she asked DMA if he had been touched, he put his head down and looked away. DMA’s account is generally consistent with that of JA and DA.

34. DMA also gave evidence before the primary judge. He said (commencing at T26 L45) that he was present with TS and his two brothers in early December 2012 at which time TS had expressed concerns about the applicant’s behaviour towards T. He agreed (T28 L44-45) that he was present when JA made allegations against the applicant, and that TS had then asked DA whether he had experienced similar offending (T29 L1-19).

35. DMA said (T11 L30-31) that TS had then asked him if the applicant had assaulted him in a similar way. He said that he told her that he had done so. He also said (T20 L4-6) that he had later spoken to W about the matter in the presence of DA. However there was no evidence as to the extent of any such discussions, either with W or with DA. It was not suggested to DMA that those discussions had any bearing upon what he later told police.

33. DMA agreed (T31 L1-3) that a decision was made “as a family” to report the matter to police. However he denied (T31 L5-8) that this decision followed “a series of family discussions” or “(his) parents talking …. about the allegations”. It was not put to DMA that he discussed any allegation with either of his brothers. It was also not put to him that his decision to disclose the applicant’s alleged behaviour was motivated, in any way, by what his mother had said about T, nor by what his brothers had said in his presence.

THE FINDINGS OF THE PRIMARY JUDGE

37. The primary judge found that the evidence relied upon by the Crown was admissible as tendency evidence, and that the counts in the Indictment should not be separated. I have set out those findings in full when dealing with the specific grounds of appeal. In summary, in respect of the factual question of whether there was evidence of concoction or contamination, the primary judge found that:

1. there was no aspect of the evidence of the three victims which caused him to question the reliability of their evidence (at 13);

2. there was no direct evidence of concoction, and no such allegation had been put to any of the victims (at 17);

3. the spontaneity of the complaints did not bespeak of concoction (at 17);

4. whilst it was possible that there was some unwitting contamination (as opposed to concoction) that possibility had not been explored in cross-examination and accordingly, the probative value of the evidence had not been reduced by reason of any contamination (at 18).

38. The primary judge also found that:

1. the applicant’s submission, based upon the decision in Hochv The Queen [1988] HCA 50; (1988) 165 CLR 292, that the evidence should be excluded if it was reasonably capable of explanation on the basis of concoction, should be rejected because that decision reflected common law principles which have no application to the Act (at 14-15);

2. Hoch and other decisions of this Court which have applied it (notably BP v R [2010] NSWCCA 303 and FB v R [2011] NSWCCA 217) should not be followed (14-15);

3. for the purposes of s. 97 of the Act, and in accordance with the decision of this Court in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228, the probative value of the evidence was not to be determined by an assessment of its reliability and credibility (at 10; 13);

4. as a consequence of (iii) there was no reason to consider the submission made on behalf of the applicant that the evidence may be concocted or contaminated, because such matters went only to the reliability and credibility of the evidence (at 12-13);

5. the probative value of the evidence was significant (at 15);

6. any potential prejudice arising from the possibility that the jury may not give each individual count proper consideration, and may consider the counts collectively, could be addressed by an appropriate direction (at 16-17);

7. as a consequence, the probative value of the evidence substantially outweighed any prejudice to the accused, and the evidence should be admitted (at 17).

THE GROUNDS OF APPEAL

39. Before dealing with the grounds of appeal, it is necessary to say something about the issues raised by those grounds, and the approach which was taken by the Court at the hearing of the application for leave to appeal.

40. The grounds of appeal relied upon by the applicant raised three primary issues, namely whether the primary judge erred in:

1. concluding that there was no evidence of concoction or contamination (“the first issue”);

2. failing to apply the decisions in Hoch, BP and FB (“the second issue”); and

3. concluding that the decision in Shamouil operated to prohibit any consideration being given to the possibility of concoction when determining the probative value of the evidence (“the third issue”).

41. A further issue (“the fourth issue”) which was raised in the written submissions, but which was not referred to in oral argument, was that the notices did not amount to reasonable notice in writing as required by s. 97(1)(a) of the Act, and that they were otherwise invalid because of a failure to indicate that an intention to adduce tendency evidence from one victim in support of a charge against a different victim. As set out in [15] and [16] above, when these matters were raised before the primary judge counsel then appearing for the applicant effectively abandoned any reliance upon them and indicated, on more than one occasion, a preparedness to proceed on that basis. In light of counsel’s clearly stated position before the primary judge, leave should be refused in respect of this issue.

42. As to the first three issues, the Crown’s position, in general terms, was that the finding of the primary judge that there was no concoction or contamination in the evidence of the three victims was one which was open to him. The Crown further submitted that the primary judge did not err in declining to follow and apply Hoch and that the preferred approach to the issue, consistent with that followed by the primary judge, was that formulated by Basten JA in BJS v R [2011] NSWCCA 239 (“BJS No. 1”) at [26] and [27], and applied by Hoeben CJ at CL in BJS v R [2013] NSWCCA 123 (“BJS No. 2”) at [65]-[66] . The Crown further submitted that the primary judge was correct to decide that the decision of this Court in Shamouil prevented him from having regard to issues of concoction or contamination when determining the probative value of the evidence, because those matters went only to reliability and credibility.

43. The first issue raised by the applicant is a purely factual one. However, the second and third issues highlight, to some degree, differing approaches to the question of how an allegation of concoction or contamination might bear upon the admissibility of tendency evidence, and the assessment of its probative value.

44. Ultimately, the Court heard argument on all three issues. It is appropriate that leave be granted in respect of each of them. If the first is resolved against the applicant, the second and third will not require determination.

THE FIRST ISSUE – EVIDENCE OF CONTAMINATION OR CONCOCTION

The findings of the primary judge

45. The primary judge extensively summarised the evidence of each of the three victims commencing at p. 2 of his reasons. Having done so he said (at p. 13):

“I heard the evidence of the complainants on the voir dire, and I am unable to find that there is anything in their evidence that causes me to question the believability or reliability or the evidence. It must follow that the evidence, if accepted by the jury, would have significant probative value on the issue of whether the accused committed similar acts on the other complainants. Of course it is the intention of the Crown to conduct a joint trial. In each of the cases involving a separate complainant the Crown seeks to tender two pieces of tendency evidence, namely, the allegations made by the other complainants, to seek to establish the tendency alleged. In my view, given the nature of the evidence, it must be accepted that it would be of importance in the jury's assessment of the allegations made by each complainant”.

46. He then said (at 17-18):

“Inasmuch as I have not addressed the issues of alleged concoction andcontamination of the evidence in detail, I do note that whilst the complainants were called, none were confronted with an allegation of concoction. That leaves the Court with no direct evidence of any such concoction. Any inference of such concoction is, in my view, not a strong one based on the evidence. The spontaneity of the complaints was such that they do not bespeak of concoction. Moreover, if the allegations were entirely made up, particularly with the assistance of someone trained in the law as may be suggested, you would expect that they would address inconsistencies in those accounts that do not assist the Crown case. It does not appear to be the case based on the evidence led in the proceedings. It would be entirely speculative in these circumstances to suggest that there was any concoction here.

There must always be a possibility of contamination of the evidence when the complainants are closely related. Does that mean that in all such cases no tendency evidence could be admitted? With respect, that would be contrary to the line of authority already quoted. But in any case, it is plain from the evidence led in this case that none of the complainants was aware of the detail of the other complaints until those complaints were made for the first time to their mother. Thereafter there was a family, discussion about whether the matter should be reported to the police.

It is possible in that process that some unwitting contamination, as opposed to concoction of the evidence, occurred. If it did occur, based on the evidence I am unable to make any positive finding. Even the possibility of such contamination affecting the accounts of the complainants was not explored in cross-examination. Accepting that it is the Crown that must satisfy the Court on the issue, I am not of the view that the probative value of the evidence is reduced by the reason of any contamination. Clearly this is a matter that can be taken up before the jury, for them to determine”.

Submissions of the parties

47. Senior counsel for the applicant submitted that his Honour had erred in concluding that there was no evidence of concoction or contamination of the evidence of the three victims, and argued that such a conclusion was not reasonably open on the evidence.

48. In advancing this submission senior counsel submitted, in particular, that the primary judge had failed to:

1. engage in a proper analysis of the evidence; and

2. provide adequate reasons for his conclusions.

49. The Crown pointed to the fact that the primary judge had extensively summarised the evidence of the three victims. Leaving aside the consistency in the respective accounts of the alleged offending, the Crown submitted that the circumstances in which the allegations were made tended wholly against a conclusion that they were concocted or contaminated. The Crown pointed, in particular, to the spontaneity of JA’s account, which was immediately followed by those of DA and DMA. It was submitted that such circumstances tended wholly against a conclusion that the allegations were concocted or contaminated.

50. The Crown also relied on the fact that there was no evidence of any discussions between the three victims before that time, nor was there any evidence of discussions having taken place between them in the period between the time at which the allegations first emerged, and the time at which they made their statements.

THE SECOND ISSUE – THE DECISION IN HOCH v THE QUEEN

The findings of the primary judge

51. The primary judge found the following (at 14-15):

“Submissions filed by the accused in this case state:

"The accused submitted that the proper basis for rejecting tendency evidence under s 101 on the basis of concoction is whether the evidence 'is reasonably capable of explanation on the basis of concoction'."

The submission refers to BP v R [2010] NSWCCA 303 at para 110. The submission accurately states the judgment, but that judgment relies on the common law decision of Hoch v R (1988) 165 CLR 292. As the High Court itself has already pointed out, no reliance can be placed on decisions based on common law principles after the enactment of the Evidence Act where they are in conflict. Consequently, the decision in Hoch has no general application to the interpretation of s 101 of the Act. Similar statements about the applicability or principles derived from Hoch's case in determining questions of admissibility of tendency evidence in s 101 have been made in other judgments from the Court of Criminal Appeal such as FB v R [2011] NSWCCA 217 at para 35 and BJS v R [2013] NSWCCA 123 at paras 61-63. With respect, they suffer from the same problem. I note in BP that the Court also said that the possibility of concoction and contamination of the evidence was relevant to considerations of prejudice to the accused by the admission of the evidence. With respect, that does not seem to follow. The prejudice referred to in the section relates to the misuse of the tendency evidence by the jury. Questions of credibility and reliability or believability of the evidence are matters for the tribunal of fact. These are not questions that relate in any logical way to the jury misusing the evidence”.

Submissions of the parties

52. As is evident from the findings of the primary judge, the principal submission advanced by counsel then appearing for the applicant was that that if the evidence in question was reasonably capable of explanation on the basis of concoction, it should be excluded as tendency evidence. That submission was based upon the decision in Hoch.

53. Before this Court, senior counsel for the applicant (who did not appear before the primary judge) sought to maintain that general position. Whilst he appeared to accept that difficulties arise when it is sought to apply decisions based upon common law principles to determinations under the Act, he submitted that the principle in Hoch had been adopted by this Court in BP and FB, and that the primary judge had erred in not following those decisions.

54. In response, the Crown emphasised that the determination of any question arising under the Act was to be made according to the terms of the relevant provisions, and not by the application of common law principles which had been developed prior to their introduction. In this regard the Crown relied, in particular, upon recent observations by Basten JA in Saoud v R [2014[ NSWCCA 136 at [38]-[40]. The Crown submitted that these observations confirmed the proposition that common law principles had no application, and can indeed be distracting, to the consideration of issues arising under the Act.

55. The Crown submitted that in these circumstances, the primary judge had not erred in declining to apply the principle in Hoch. It was submitted that although there were decisions of this Court which followed Hoch there had, more recently, been departures from it, notably by Basten JA in BJS No 1 at [26] and [27] and subsequently by Hoeben CJ at CL in BJS No. 2 at [65]-[66]. It was submitted that their Honours’ respective observations were to be taken as reflecting the proper approach to the question of the continuing applicability of the decision in Hoch to the admissibility of tendency and coincidence evidence under the Act.

THE THIRD ISSUE – THE RELEVANCE OF CONCOCTION AND CONTAMINATION TO AN ASSESSMENT OF THE PROBATIVE VALUE OF TENDENCY EVIDENCE

The findings of the primary judge

56. Having referred to the decisions in Shamouil and R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363, the primary judge found the following (at 10-11 of his reasons):

“Consequently the consideration of the probative value of tendency evidence would rarely if ever be determined by assessment of the reliability and credibility of the evidence. In order to have significant probative value the evidence must be of importance or of consequence in the trial. It must be important in determining whether the accused had a tendency to act in a particular way, that is the tendency alleged.

The tendency if proved must itself be significantly probative of the charge that the accused is facing. The jury is asked to reason that because the accused has acted in a particular way on one or more occasion, that he must have acted in the way alleged on the occasions outlined in the charges”.

57. His Honour then referred to decisions in DAO v R [2011] NSWCCA 63; (2011) 81 NSWLR 568 and Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 before continuing (at p. 11):

“However the question as to whether the assessment of probative value ofevidence depends on the assessment of reliability or credibility was specifically addressed and settled in the unanimous decision of the Court of Criminal Appeal in Shamouil set out above”.

58. His Honour then concluded (at p. 12):

“Based on this authority there is no reason to consider the accused’ (sic) submissions to the effect that the evidence might possibly have been concocted or that it is contaminated in some way. Those issues relate to the credibility and reliability of the evidence”.

Submissions of the parties

59. Senior counsel for the applicant submitted that the decision in Shamouil did not preclude consideration of concoction and contamination when determining the probative value of the evidence. It was submitted that the decision in Shamouil established a general rule, the application of which was subject to identified exceptions. Senior counsel submitted that one such identified exception arose where evidence was contaminated or concocted. In support of these submissions senior counsel relied upon observations made by members of the Court in XY and in DSJ v R; NS v R [2012] NSWCCA 9; (2012) 84 NSWLR 758 which, it was submitted, represented a “relaxation” of the reasoning in Shamouil.

60. The Crown submitted that there was no basis, in any of the authorities, for the conclusion that the principles in Shamouil were to be relaxed. In respect of the reliance by senior counsel for the applicant upon the decision of this Court in DSJ, the Crown pointed out that the issues in that case did not bear upon matters of credibility and reliability. A similar submission was made by the Crown in terms of the reliance placed upon the decision in XY. In these circumstances, the Crown submitted that questions of concoction and contamination were relevant only to assessments of reliability and credibility, and thus irrelevant to any assessment of the probative value of tendency evidence.

THE STATUTORY PROVISIONS

61. For present purposes, the Act contains two particular provisions which are relevant, namely ss. 97 and 101. Section 97 is in the following terms:

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:

(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.

(2) Paragraph (1)(a) does not apply if:

(a) the evidence is adduced in accordance with any directions made by the court under section 100; or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

Note: The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.

62. Section 101 imposes further restrictions on the admissibility of tendency evidence relied upon by the prosecution and is in the following terms:

Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(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.

(4)  This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

CONSIDERATION

63. For the reasons more fully set out below, I have reached the conclusion that there was no error in respect of the first issue, and that the conclusion reached by the primary judge that there was no evidence of contamination or concoction was well open to him. In those circumstances, it is not necessary to determine the second and third issues. However, as the court heard argument in relation to them, it is appropriate to make some observations about the questions that they raise.

The second issue

64. In Hoch the High Court considered the admissibility of similar fact evidence, in circumstances where the question of concoction of that evidence was raised. The plurality (Mason CJ, Wilson and Gaudron JJ) made reference at (296) to the decision of Lord Wilberforce in Director of Public Prosecutions v Boardman [1975] AC 421 at 444 before saying (at 296):

“His Lordship there posited that the possibility of concoction - not a probability or real chance of concoction - served to render such evidence inadmissible. Indeed we think that must be right. Similar fact evidence is circumstantial evidence, as is implicit in what was said by Dixon J in Martin v Osborne (1936) 55 CLR 367 at 375 and as pointed out by Dawson J in Sutton v The Queen (1984) 152 CLR 528 at 564. In Sutton (at 564) Dawson J expressed the view, with which we agree, that to determine the admissibility of similar fact evidence the trial judge apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused.

In cases such as the present, the similar fact evidence serves two functions. It’s first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event of events in issue. In relation to both functions the evidence, being circumstantial evidence, had probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view – viz. joint concoction – is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.

Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on voir dire. If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience would indicate that the evidence bears that probative force which renders it admissible. On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and have the opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible. Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction” (emphasis on original).

65. Brennan and Dawson JJ said (at 302):

“If there is a real danger of the concoction of similar fact evidence it is consistent with the attitude which the law adopts toward evidence of that kind that it should exclude it upon the basis that its probative value is depreciated to an extent that a jury may be tempted to act upon prejudice rather than proof. That consideration is of special importance in cases where the fact to be proved is inferred not from similar facts which have been clearly established but from the concatenation of the testimony of a number of witnesses who depose to the occurrence of similar facts. The credibility of that testimony bears directly on the probative force of the evidence. Several witnesses all giving evidence to a similar effect are generally easier to believe than one witness. But if the witnesses have put their heads together that is not the case.”

66. The effect of the decision of the plurality in Hoch was that at common law, the possibility of similar fact evidence being concocted rendered the evidence inadmissible. Hoch was decided prior to the commencement of the Act which refers, not to “similar fact” evidence, but to evidence of tendency and coincidence.

67. In R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 this Court (Spigelman CJ, Sully, O’Keefe, Hidden and Buddin JJ) concluded (at [74]) that Part 3.6 of the Act, within which the provisions regarding tendency and coincidence evidence are contained, reflected an intention on the part of the Parliament to lay down a set of principles covering the field, to the exclusion of common law principles which were previously applicable. The correctness of that approach was recently reiterated in Saoud where Basten JA (with whom Fullerton and RA Hulme JJ agreed) said at [38]-[40]:

“First, the provisions of the Evidence Act have effected change to common law principles, which are no longer to be applied. It follows that, whilst there may be assistance to be derived from the common law cases with respect to the underlying principles which inform the exclusion of tendency and coincidence evidence, those cases provide limited guidance as to the circumstances in which such evidence may now be admitted.

[39] Secondly, although there is no necessary harm in using concepts which became familiar in the common law cases, such as the fact that evidence reveals "unusual features", "underlying unity", "system" or "pattern", which are essentially neutral as to the level at which such features are demonstrated, the language of "striking similarities" suggesting a particular strength of probability reasoning is no longer apt, because it is inconsistent with the test of "significant probative value": Simpson J in Fletcher at [60], commenting on a passage from Hoch v The Queen [1988] HCA 50; 165 CLR 292 at 294-295.

[40] Thirdly, reliance on such language may distract (by creating a mindset derived from common law experience) and may provide little guidance in applying the current statutory test. As stated by Campbell JA in R v Ford at [125]:

"The Respondent accepts that the evidence in question has some probative value, but disputes that it has significant probative value. It submits that there is no striking pattern of similarity between the incidents. In my view there is no need for there to be a 'striking pattern of similarity between the incidents'. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged."

68. There have been decisions of this Court in which Hoch has been applied to considerations of the probative value of tendency evidence for the purposes of the Act. In BP Hodgson JA (with whom Price and Fullerton JJ agreed) said (at [110]-[111]):

“[110] One matter that powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect is the risk of concoction or contamination of evidence. If the evidence of tendency from different witnesses is reasonably capable of explanation on the basis of concoction, then it will not have the necessary probative value: Hoch v The Queen (1988) 165 CLR 292. However, this will be so only if there is a real chance rather than a merely speculative chance of concoction: R v Colby [1999] NSWCCA 261 at [111], R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433 at [74], [112]. The onus is on the Crown to negate the “real chance” of concoction: OGD at [74], R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126 at [48].

[111] Relevant to consideration of concoction are the factors mentioned in Hoch at 297, namely relationship, opportunity and motive. One of these on its own is not sufficient to base a finding of a real possibility of concoction: R v RN [2005] NSWCCA 413 at [15], OGD at [111] – [112].”

69. The effect of his Honour’s conclusion was that if there is a real, as opposed to speculative chance of concoction, the evidence will not have the necessary probative value and will be inadmissible.

70. The issue arose again before this Court in FB. Whealy JA (with whom Buddin and Harrison JJ agreed), having acknowledged the decision of this Court in Ellis, said (at [35]):

“[35] It necessary to bear in mind that Hoch was concerned with the admission of similar fact evidence under the common law, and propounded the "no other rational view" test that had been adopted in Pfennig at 482-483 by Mason CJ, Deane and Dawson JJ. This, of course, is not the test for the admission of tendency or coincidence evidence under the Evidence Act : R v Ellis [2003] NSWCCA 319; 58 NSWLR 700. Nonetheless, it could not have been said to have been an error for the trial judge in the present matter to approach the matter on the basis he did, namely to explore whether there was material that indicated there was a real chance of concoction having occurred. Mr Newton did not suggest otherwise. His Honour correctly identified, however, that there must be a real chance, rather than a merely a speculative chance, of concoction (BP v R; R v BP at [110]; R v Colby [1999] NSWCCA 261 at [111]).”

71. The subsequent decision of this Court (Basten JA, RS Hulme and Hall JJ) in BJS No. 1 concerned an appeal against an interlocutory decision to refuse to grant separate trials in respect of counts of sexual offending which were referable to separate complainants. Basten JA, with whom the other members of the Court agreed, said (commencing at [23]):

“[23] The language of ss 97(1)(b) and 98(1)(b), each referring to the evidence having "significant" probative value is not consistent with the requirement that there be no rational explanation for the evidence, apart from its cogency in respect of the charge. Further, the balancing test required by s 101(2) is also inconsistent with a general requirement as to probative value in terms of the Pfennig test. As explained by Spigelman CJ (with whom Sully, O'Keefe, Hidden agreed) in R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [95]:

"The 'no rational explanation' test focuses on one only of the two matters to be balanced - by requiring a high test of probative value - thereby averting any balancing process. I am unable to construe s 101(2) to that effect."

[24] As explained in Hoch, the rejection of propensity evidence on the basis that there is a reasonable possibility of concoction followed logically from the proposition that the evidence was inadmissible if there were any reasonable explanation for it, inconsistent with the guilt of the accused. The conclusion that the general principle is inconsistent with the Evidence Act must mean that, at least as a general rule, the subsidiary principle falls away. No doubt the reasonable possibility of concoction is a factor which must be taken into account in assessing the "prejudicial effect" of the evidence, but a more nuanced approach is now required under s 101(2), dependent on the circumstances of the particular case: cf Ellis at [96].

[25] That approach is consistent with the approach preferred by Hulme J in R v Le [2000] NSWCCA 49 at [115] (Hidden J agreeing) and in R v Andrews [2003] NSWCCA 7 at [16] (Heydon JA noting the issue as one not requiring resolution). On the other hand, there is a line of authority to the contrary, requiring that the principles adopted in Hoch be applied in trials conducted in accordance with the Evidence Act: R v Colby [1999] NSWCCA 261 at [107] (Mason P, Grove and Dunford JJ agreeing), applied in R v OGD [No 2] [2000] NSWCCA 404; 50 NSWLR 433 at [74] and [112] (Mason P and Dowd J agreeing) and R v F [2002] NSWCCA 125; 129 A Crim R 126 at [23]-[27] and [48] (Wood CJ at CL, Meagher JA and Bell J agreeing). The authority of this category of cases has been removed by the decision of a five judge Court in Ellis, which post-dated each of them.

[26] There are, however, authorities subsequent to Ellis which continued to apply the approach adopted in Colby and its progeny: BP v R; R v BP [2010] NSWCCA 303, and, most recently, FB v Regina [2011] NSWCCA 217 at [35] (Whealy JA, Buddin and Harrison JJ agreeing). In BP, Hodgson JA (with the agreement of Price and Fullerton JJ) stated:

"[109] The possibility of prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue .... An assessment must be made whether the probative value of the evidence substantially outweighs any prejudicial effect that the evidence may have: R v Ellis ... at [94]-[95]. ...

[110] One matter that powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect is the risk of concoction or contamination of evidence. If the evidence of tendency from different witnesses is reasonably capable of explanation on the basis of concoction, then it will not have the necessary probative value: Hoch .... However, this will be so only if there is a real chance rather than a merely speculative chance of concoction: R v Colby ..., R v OGD (No 2) .... The onus is on the Crown to negate the 'real chance' of concoction: OGD at [74], R v F ... at [48]."

[27] The statements at [109] and in the first sentence of [110] are unimpeachable; the second and third sentences (relying on Hoch and Colby) at [110] are, in my view, inconsistent with Ellis and should not be applied as a general rule.”

72. RS Hulme J said (at [42]):

“I agree with Basten JA that the approach to tendency and coincidence evidence for which Hoch (supra) stands as authority is not consistent with the terms of s. 97 and s. 98 of the Evidence Act 1995.”

73. The issue was raised again before this Court (Hoeben CJ at CL, Davies and Adamson JJ) in BJS No. 2, which was the Court’s determination of an appeal by BJS against the convictions for multiple counts of sexual offending at a trial which followed the decision in BJS No. 1. The reliance of the appellant in that case upon the judgment of Hodgson JA in BP led to the following observations by Hoeben CJ at CL (with whom the other members of the Court agreed) at [65]-[66]:

“The Appellant's reliance upon the observation of Hodgson JA in BP (see [61] hereof) is problematic. In BJS v Regina [2011] NSWCCA 239 at [27] Basten J identified the difficulties with that statement of principle and concluded that it was ‘inconsistent with Ellis and should not be applied as a general rule’.

[66] The Appellant's submissions on the issue of contamination go very close to requiring the trial judge to usurp the function of the jury by making a ruling as to admissibility which went considerably beyond the evaluative process required by ss97 and 101 of the Evidence Act. Moreover, his Honour was well aware of the risk of contamination and he excluded some of the proposed tendency evidence on that basis.”

74. The primary judge did not refer to BJS No. 1 in his reasons. He did refer to BJS No. 2 in the passage set out in [51] above, although the terms in which he did so suggest that he thought that it was supportive of the position taken by the applicant. As is evident from the passages of the judgment of Hoeben CJ at CL which are set out above (they being passages to which his Honour did not refer) the decision in fact supports the conclusion that the primary judge reached.

75. In my view, the reliance placed by the applicant in the present case upon Hoch and those cases which followed it was (as Hoeben CJ at CL described it in BJS No. 2) problematic. Such an approach tends to overlook the decisions in Ellis and Saoud. As Bell JA (as her Honour then was) stated in AE v R [2008] NSWCCA 52 at [44]:

“…Hoch was concerned with the admission of similar fact evidence under the common law and propounded the “no other rational view” test that was adopted in Pfennig v The Queen (1995) 182 CLR 461 at 482-483 per Mason CJ, Deane J and Dawson J. This is not the test for the admission of tendency or coincidence evidence under the Act; R v Ellis [2003] NSWCCA 319…”

The third issue

76. The primary judge concluded that questions of concoction and contamination were relevant only to issues of credibility and reliability. Having reached this conclusion, the primary judge found that the decision of this Court in Shamouil prohibited any consideration being given to questions of concoction and contamination.

77. The essence of the submissions advanced by senior counsel for the applicant was that in cases decided since Shamouil (notably DSJ and XY) there had been something of a relaxation in the application of the relevant principles, such that the possibility of concoction or contamination was a relevant consideration when assessing the probative value of tendency evidence.

78. In Shamouil this Court (Spigelman CJ, Simpson and Adams JJ) considered whether issues of credibility and reliability were relevant to the determination of probative value for the purposes of (inter alia) s. 97(1)(b). Spigelman CJ (with whom the other members of the Court agreed) said (commencing at [60]):

[60] The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for the purposes of determining questions of admissibility. There is no reason to change that approach.

[61] In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, “the extent to which the evidence could rationally affect the assessment …”. The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has “probative value”, as defined, if it is capable of supporting a verdict of guilty.

[62] This conclusion is reinforced by the test that evidence must “rationally affect” the assessment. As Gaudron J emphasised in Adam supra, a “test” of ‘rationality’ also directs attention to capability rather than weight.

[63] There will be circumstances, as envisaged by Simpson J in Cook supra, where issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue. In that limited sense McHugh J’s observations in Papakosmas that “considerations of reliability are necessarily involved” have application.

[64] To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in that different, but not irrelevant, context in Doney v R (1990) 171 CLR 207 at 275, this is not a permissible “basis for enlarging the powers of a trial judge at the expense of the traditional jury function”. In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s 137.”

79. In DSJ this Court (Bathurst CJ, Allsop P, Whealy JA, McClellan CJ at CL and McCallum J) considered an appeal against a decision dismissing an application that a number of charges alleging insider trading be tried separately. In allowing the appeal and referring the matter back to the primary judge, Whealy JA (with whom the other members of the Court agreed) said (at [56]):

“Assessment of the probative value of the evidence, whether for the purposes of ss. 97, 98, 101 or 137 of the Evidence Act does not, generally speaking, depend on any assessment of its credibility or reliability: Shamouil at 237; [60]. Nor does it depend on any prediction that a jury will in fact accept it. The trial judge considering probative value has to make his own estimate or assessment of probative value predicated upon the assumption that the jury will accept the evidence”.

80. His Honour went on to say (at [79] and following):

“[79] In a practical sense there are two avenues of approach to be taken. First, in examining the coincidence evidence (together with other material already in evidence or to be adduced) the trial judge is required to ask whether there emerges, from a consideration of the Crown evidence, a possible explanation inconsistent with guilt. For regard to be had to the alternative explanation, it must be a real possibility, not a fanciful one. It must be a broad or overarching possibility, capable of being stated in general terms, even though it may derive from an individual piece or pieces of evidence, or the evidence taken as a whole.

[80] Secondly, the trial Judge must ask whether that possibility substantially alters his (or her) view as to the otherwise significant capacity of the coincidence evidence to establish the fact or facts in issue. Of course, if the trial Judge has already concluded that the coincidence evidence does not reach that level of significance in terms of its capacity, he will have rejected the evidence, in terms of s. 98. In that situation, the possibility of an alternative inference may, for the time being, be set to one side. Later in the trial, when the evidence has concluded, that possibility will become a matter for the jury to assess and determine when it comes to consider whether the Crown has proved its case beyond reasonable doubt”.

[81] The Crown … however, stressed that at no stage in this process was the trial judge required to or entitled to assess the actual weight of any part of the evidence, or to make any actual assessment concerning the probabilities of any alternative theory. Nor was the trial judge required or entitled to make a comparison of the Crown theory and the probabilities or any alternative theory. This proposition appears consistent with established authority. Any attempt by the trial judge to anticipate the actual weight the jury would attach to the evidence is prohibited, as I have explained”.

81. Bathurst CJ said (at [8]-[10]):

“[8]…it follows from the use of the word could in the definition of significant probative value that what the Court is required to assess is the possibility of the evidence affecting the assessment of the probability of the existence of a fact in issue. It is not required to assess whether the evidence would have this effect, that is, engage in a fact-finding exercise involving an assessment of the reliability and credibility of the evidence: cf R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 226 at [59]-[67].

[9] … the matters to which the Court is to have regard in performing this task is the evidence sought to be adduced either on its own or having regard to other evidence adduced or to be adduced by the party seeking to tender it. In particular, regard is not to be had to evidence either adduced or to be adduced by the other party to the proceedings. This also demonstrates, in my opinion, that it is no part of the Court’s task to engage in a fact-finding exercise to determine the reliability or credibility of the evidence, or to form a view one way or the other whether the jury would in fact find the evidence to be of significant probative value.

[10] However, as Whealy JA has pointed out (at [78]-[81]) the trial judge in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced to be adduced by the party tendering it, whether there is a real possibility of an alternate explanation inconsistent with (in this case) the guilt of the party against whom it is tendered. This is because the availability of such an alternative hypothesis will be relevant to forming the view required by the section that the evidence has significant probative value. However, this does not involve either undertaking the fact-finding analysis suggested by senior counsel for DSJ or reaching a conclusion that the explanation for the coincidence proffered by the party seeking to tender the evidence was more probable than an alternative hypothesis. Each of these approaches go beyond what is required by the terms of s. 98(1)(b) of the Act and would involve the judge usurping the fact-finding role of the jury”.

82. Allsop P observed (at [11]):

“It is important, as Whealy JA recognizes, that there be no misunderstanding about the task of the judge. It is his or her task to assess the capacity of the evidence in the manner described by Whealy JA, not to assess what a jury will do”.

83. Subsequently in XY this Court (Basten JA, Hoeben CJ at CL, Simpson, Blanch and Price JJA) further considered (inter alia) the decision in Shamouil. In that case Basten JA (with whom Simpson J agreed) said (commencing at [66]):

“[67] The importance of Shamouil lies not in the precise language used (the judgment is not to be treated as a statute) but in the general principle it articulates. The operation of that principle may vary depending upon the circumstances of the case. In broad terms, the principle has three elements:

(1) in determining inadmissibility under s 137, the judge should assess the evidence proffered by the prosecution on the basis of its capacity to advance the prosecution case;

(2) it follows from (1) that the judge should deal with the evidence on the basis of any inference or direct support for a fact in issue which would be available to a reasonable jury considering the proffered evidence, without speculating as to whether the jury would in fact accept the evidence and give it particular weight;

(3) it also follows from (1) that the judge should not make his or her own findings as to whether or not to accept the inference or give the evidence particular weight.

[67] This principle does not produce uniformity of approach in all cases. The "weighing" exercise required if s 137 is engaged not only involves incommensurates, but elements that may interrelate in a variety of ways. For example, in the present case there are a number of possible inferences to be drawn from the recorded conversations. Those on which the prosecution relied, based on the key response of the accused set out at [8] above, were that his response -

(a) was made after he had identified who the complainant was;

(b) involved a realisation that she was referring to sexual activities between them, and

(c) involved acceptance of the occurrence of such activities.

Other available inferences were, for example, that:

(d) the respondent had not correctly identified the complainant;

(e) whether he had or not, he guessed she was referring to sexual activities and gave a jocular response, and

(f) even if there had been some form of acceptance of her suggestion, because no particular activities had been identified, his admission could not support any particular count in the indictment.

[68] Determining which inferences should be accepted was quintessentially a function for the jury. Before the exclusionary obligation in s 137 could arise, the judge had to identify the relevant "unfair prejudice". That meant identifying how the evidence (if admitted) would be left to a jury and wherein lay the risk of misuse. No particular element of prejudice was identified. Had it been, the risk that a jury would not appreciate the nature of the problem after proper direction had then to be assessed. The trial judge did not undertake that exercise because the previous step had not been taken. That was an error of law”.

84. Hoeben CJ at CL said (at [86]-[89]):

“[86] In relation to s. 137 of the Evidence Act, subject to the following observations, I agree with Basten JA and Simpson J that when assessing the probative value of the prosecution evidence sought to be excluded, the court should not consider is reliability, credibility or weight. I

specifically adopt what was said by Basten JA at [66]-[67] above.

[87] Accordingly, I agree that the courts of New South Wales should follow R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 when applying s 137 of the Evidence Act.

[88] Where I differ from their Honours is as follows. When assessing the probative value of the prosecution evidence sought to be excluded, that is, its capacity to support the prosecution case, a court can take into account the fact of competing inferences which might be available on the evidence, as distinct from determining which inference or inferences should be or are most likely to be preferred. It was that to which the court was referring in DSJ v The Queen [2012] NSWCCA 9; (2012) 215 A Crim R 349 at [10] per Bathurst CJ; [11] per Allsop P and [78] per Whealy JA.

[89] Here, as Basten JA, Blanch and Price JJ have pointed out, there were alternative inferences available which were inconsistent with the prosecution case and which were objectively plausible. That is a matter which can properly be taken into account when carrying out the balancing exercise required by s. 137 to determine whether the probative value of the evidence is outweighed by its prejudicial effect”.

85. In the present case, the primary judge found that the possibility of concoction or contamination of the evidence was a matter which went only to issues of credibility and reliability. He concluded, in effect, that in those circumstances the decision in Shamouil precluded him from having regard to any issue of credibility and reliability in an assessment of the probative value of the evidence.

86. It must be emphasised that in the course of his judgment in Shamouil, Spigelman CJ made reference to the fact that the relevant authorities were in favour of a restrictive approach to the circumstances in which issues of reliability and credibility might be taken into account in determining the probative value of evidence. He did not describe that approach as one which prohibited the consideration of those issues when determining that question. In describing the approach as restrictive, his Honour recognised that there may be cases in which issues of credibility or reliability may be relevant to that determination.

87. The effect of the conclusion reached by the primary judge in the present case was that the decision in Shamouil prohibited, under any circumstances, consideration of issues of credibility. That overstated the effect of the decision in Shamouil, although it does not alter the view I have ultimately reached as to the disposition of the present application.

88. Those parts of the judgments in DSJ and XY set out above support the conclusion that in assessing probative value of tendency evidence for the purposes of ss. 97 and 101, it is no part of the function of the Court to assess, and make its own findings as to, the weight of the evidence, or to determine the likely acceptance or rejection of the evidence by a jury. However, they also support the conclusion that in assessing such probative value the Court may take into account, without determining the acceptance or rejection of, such competing inference(s) as may arise from the evidence.

89. Whether that may extend, in a given case, to allowing a Court to take into account concoction and contamination is a separate question entirely, the answer to which will depend largely upon the evidence. The evidence in DSJ and XY did not involve any issue of credibility and reliability. Accordingly, the Court was not required, in either case, to determine the question.

90. It is conceivable that there may be cases in which evidence of concoction and contamination gives rise to competing inferences. It may be that in such a case, those inferences are relevant to a determination of the probative value of the evidence. However, the evidence in the present case does not give rise to such inferences. For the reasons set out below, his Honour’s conclusion that there was no evidence of concoction or contamination was one which was well open to him. In those circumstances, the third issue raised by senior counsel for the applicant based upon the judgments in XY and DSJ does not require determination.

The first issue

91. In my view his Honour’s finding that there was an absence of evidence of concoction or contamination was one which was well open to him. I have reached that view for several reasons.

92. Firstly, the submissions made on behalf of the applicant that the primary judge failed to properly analyse the evidence, and that his reasons were inadequate, cannot be accepted. His Honour, commencing at page 2 of his reasons, comprehensively summarised the evidence of each of the three complainants, including their cross-examination.

93. There are a number of factors which may bear upon a determination of whether evidence has been concocted, or is contaminated. One is the relationship between the complainants. Another is the opportunity for concoction. Another is whether there is a specific factor or factors which might act as motivation to concoct evidence. In the present case, there was obviously evidence of a relationship between that of the three alleged victims and, in turn, a relationship between each of them and the applicant. However, the mere existence of such relationships does not, of itself, support a finding of concoction or contamination. The evidence in the present case, as a whole, runs entirely contrary to such findings.

94. His Honour noted (at page 3 of his reasons) that it had not been specifically put to JA that he had concocted his story. He further noted that no reason had been suggested to JA which might have gone some way towards establishing some motive for any such concoction. Those observations were entirely correct. Moreover, although his Honour did not do so, it would have been open to him to extend such observations to the evidence of the remaining two witnesses.

95. Counsel who appeared for the applicant before the primary judge did not put to any of the victims, specifically or otherwise, that their evidence was either concocted or contaminated. Moreover, counsel did not put to any of the victims that there was any opportunity for them to concoct their evidence, nor did he put to any of them any factor(s) which might have provided some motivation to do so.

96. The evidence in the present case established a spontaneous complaint by JA. That was followed by complaints by DA and DMA. Although those latter complaints were made following questions being put to each of DA and DMA by TS, those questions were open ended. They did not solicit, much less suggest, a particular response. There was no evidence that any discussions had taken place between the three victims prior to that time. There was no evidence of any discussions having taken place between them in the period which intervened between the making of the allegations and the making of their statements. There was also no evidence of anything arising from the discussions which took place between the victims and W which suggested concoction or contamination.

97. It follows that I am not satisfied that any factual error was made by the primary judge.

ORDERS

98. I propose the following orders:

1. Leave to appeal on the fourth issue is refused.

2. Leave to appeal on each of the first, second and third issues is granted.

3. The appeal dismissed.

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Decision last updated: 10 August 2015