JS v The Queen

[2022] NSWCCA 145

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

JS v R [2022] NSWCCA 145

Hearing dates:

13 May 2022

Date of orders:

29 June 2022

Decision date:

29 June 2022

Before:

Basten AJA at [1];
Hamill J at [53];
Dhanji J at [54]

Decision:

(1)   Grant the applicant leave to appeal from his convictions in the District Court.

(2)   Dismiss the appeal.

Catchwords:

CRIMINAL PROCEDURE – trial – directions to jury – allegation that accused had sexual interest in complainant and tendency to act on it – jury directed to consider evidence of uncharged and charged acts collectively – whether judge should have directed jury that each act must be proved beyond reasonable doubt before use as tendency evidence – Criminal Procedure Act 1986 (NSW), s 161A

EVIDENCE – record of interview with complainant adduced as evidence-in-chief – admissibility to support complainant’s credibility and as direct evidence of assault

EVIDENCE – credibility evidence – evidence re-establishing credibility – complaints made 10 years after alleged offences – no application for leave to adduce evidence – no objection to evidence – whether admissible to support complainant’s credibility – Evidence Act 1995 (NSW), ss 66, 108(3)

EVIDENCE – tendency evidence – single complainant sexual offences – evidence of uncharged acts – evidence of accused having a sexual interest in complainant and tendency to act upon it – cross-admissibility of charged acts as tendency evidence

Legislation Cited:

Criminal Procedure Act 1986 (NSW), s 161A, Sch 2 Pt 29

Evidence Act 1995 (NSW), ss 66, 101A, 102, 108

Jury Directions Act 2015 (Vic), ss 61, 62

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61

HML v The Queen (2008) 235 CLR 334; [2008] HCA 16

Kassab (a pseudonym) v R [2021] NSWCCA 46

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

Texts Cited:

**

Category:

Principal judgment

Parties:

JS (Applicant)
Regina (Respondent)

Representation:

Counsel:
Ms G Huxley (Applicant)
Mr G Newton (Respondent)

Solicitors:
Murphy’s Lawyers Inc (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2019/387612

Publication restriction:

Statutory non-publication order with respect to identity of complainant.
Non-publication order with respect to identity of accused/applicant

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 745

Date of Decision:

8 June 2021

Before:

Bennett SC DCJ

File Number(s):

2019/00387612

Judgment

1. BASTEN AJA: The applicant seeks leave to appeal from his convictions on two counts of sexual intercourse with a child under 10 years, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The victim ^[1] was the applicant’s nephew, who was between 4 and 6 years old at the time of the offending. The applicant was sentenced to imprisonment for 5 years and 9 months, with a non-parole period of 2 years. There is no challenge to the sentence.

   1. The term “victim” is used rather than “complainant” because when the first event occurred he was only four. The term is not intended to assume the guilt of the applicant.

2. Each of the charges on the indictment related to an act of fellatio performed by the child on the applicant. The challenges to the convictions identified in the grounds of appeal were two-fold. Ground 1 concerned the admission of, and directions concerning, evidence of complaint by the victim to (i) a school friend (BP), (ii) his paternal grandmother, Ms Clarke, and (iii) a social worker, Mr Michael Mandis. The basis of the challenge to the admission and use of the complaint evidence was two-fold, namely that the complaints were made some years after the alleged offending and that they suggested sexual activity of a different kind from that alleged in the indictment.

3. Ground 2 challenged the judge’s directions in relation to tendency evidence. The relevant tendency evidence involved two elements, namely, (i) an allegation of sexual touching by the applicant when the victim was 4 years of age, but which was not the subject of a charge, and (ii) the conduct the subject of each charge in relation to the other charge (cross-admissibility). Each element involved the one victim.

Evidence of complaints

4. It is convenient to address first the underlying circumstances relating to the conduct of the applicant and the complaints made by the victim.

5. The earliest evidence of the applicant’s offending occurred when the victim was 4 years of age. The victim was interviewed by an officer from the Department of Community Services. In the course of the interview, the victim said that the applicant touched him on the “doodle”. ^[2] He said that the applicant touched him inside his clothing, and he was touching him by “doing stuff”. ^[3]

   2. Joint Investigation Response Team (JIRT) Tcpt, 3/10/08, Q 231, 240.

   3. Q 252.

6. No charge was laid with respect to this allegation, but at the trial in respect of later offending, the video-recorded interview was tendered as part of the child’s evidence-in-chief, as that of a vulnerable person, pursuant to Ch 6 Pt 6 of the Criminal Procedure Act 1986 (NSW). ^[4] It was relied on to demonstrate the applicant’s sexual interest in the boy and willingness to act on it.

   4. See also Criminal Procedure Act, Sch 2, Pt 29.

7. In mid-2019, the victim (then 15 years old) told a school friend (identified as BP) that he was really depressed and, when asked why, said that his uncle had touched him when he was younger. In his evidence-in-chief, given some 2 years later, BP stated: ^[5]

“I don’t remember exactly what he said, but I do remember that he said that, like, the words of yeah, he was sexually assaulted, and I think he said that, or – the only thing, yeah – the only thing I remember him saying, of like, what he remembers his uncle doing was he would get – was his uncle would get him to watch while his uncle would masturbate in front of him”.

BP described how the victim appeared at the time: ^[6]

“Ashamed, like, like, [it’s] kind of hard to explain, but like, distant, almost like he was there, but he wasn’t there. Like, he was saying something he didn’t want to have to say, because yeah, like, he wouldn’t really make eye contact, his voice, like it went deeper….”

5. Tcpt, 8/06/21, p 13(50).

6. Tcpt, p 14(30).

8. On 21 August 2019, the victim was staying with his paternal grandmother (Ms Clarke) when he said, as she recounted in evidence, “Grandma, I was abused, being sexually abused… and it was [the applicant]”. ^[7] She said that she responded: ^[8]

“‘I’m so sorry’, and I just said to him, you know, that if you need to – I need to tell somebody, so I said, who would you be comfortable talking to, and then he said the caseworker, his caseworker Michael. So, then I… then I just contacted him.”

The grandmother gave evidence that shortly thereafter Mr Mandis came to the house, spoke to the victim, and then took him to the local police station.

7. Tcpt, p 21(20).

8. Tcpt, p 21(26).

9. In cross examination it was put to her that the victim had said, “I’ve been holding onto this for six years.”. She disagreed stating that the victim had said, “I’ve been holding onto this for years”. ^[9]

   9. Tcpt, p 22(10).

10. The caseworker confirmed that the grandmother had called the organisation where he worked and that his manager had asked him to go and speak with the victim. He said that he did and the victim “disclosed to me that he was sexually abused as a child”. The victim identified the abuser as his uncle, the applicant. ^[10] The examination-in-chief continued:

    10. Tcpt, p 28(44)-(48).

“Q.   What else did he say to you?

A.   He gave me details of what the sexual acts were involved.

Q.   Just using your best recollection of what words [the victim] used –

A.   He told me that his uncle… made him perform oral sex on him.

Q.   Are they the words that [the victim] used at that time?

A.   To my recollection now, yes.

Q.   Did [the victim] say anything else to you?

A.   Yes, he told me that most of these acts were, he felt very uncomfortable with obviously. He was made to perform these acts until [the applicant] ejaculated, yeah.”

11. Mr Mandis then took the victim to the local police station so he could make a formal report. ^[11] He was not cross-examined.

    11. Tcpt, p 29(26)

12. The victim’s mother gave evidence that, at a time when she and the children had been staying at her mother’s house, the victim told her that the applicant (her brother) had “touched his doodle”. ^[12] She rang the Department of Community Services and the police about it and told them what happened. ^[13]

    12. Tcpt, p 41(5).

    13. Tcpt, p 42(10).

13. There appears to have been no objection taken to the mother’s evidence of the complaint. The focus of the appeal was the transcript of the interview with the victim conducted at the Newcastle JIRT on 3 October 2008. He was taken to the interview by his grandmother. He confirmed the complaint to his mother that the applicant had touched him on his doodle. ^[14] He said that the applicant touched him inside his clothing with his hand. ^[15] He was then four years and nine months old.

    14. JIRT Tcpt, 3/10/08, pp 16-17.

    15. Ibid, p 18.

Ground 1 – complaints

14. There was challenge to the admission of the October 2008 interview. Ground 1(c), however, stated that the judge erred in giving the jury “a complaint direction” in respect of statements made in the interview. In written submissions, the applicant’s counsel contended that the statements in the interview were “not evidence of complaint”, but “constituted part of the complainant’s evidence-in-chief”. By that, counsel meant that this material was not hearsay evidence from a third party, but was first-hand evidence as to the event which took place, namely the touching of the doodle (understood to be the boy’s penis).

15. Although the judge dealt with that material when discussing evidence of “complaint”, he correctly directed the jury that the prosecution relied upon the evidence both with regard to the credibility of the complainant and as a truthful account of what occurred. ^[16] As evidence-in-chief, that was correct. How it was to be regarded in relation to the charged offences was another matter, which was the subject of ground 2. The submission with respect to ground 1 was that the judge’s direction that this evidence “could be used for a hearsay purpose and to support the complainant’s credit elevated the evidence to a significance beyond that which the evidence had”. ^[17] However, the judge did not say that it could be used “for a hearsay purpose”. Consistently with the applicant’s submission, it was not: it was direct evidence of the assault occurring, by the person who suffered the assault: the evidence was admissible as to its truth, but also relevant to credit. It supported the counts in the indictment as it was evidence of sexual misconduct (albeit of a different nature) given much closer in time to when the charged offences were said to have occurred. While, as the applicant contended, it was technically not complaint evidence, it was both direct evidence and, in the circumstances, relevant to credit. No miscarriage was occasioned by the direction (a matter reflected in the absence of objection). There was no substance in ground 1(c).

    16. Summing up, 10/06/22, pp 20-21.

    17. Applicant’s written submissions, 1 April 2022, par 13.

16. Ground 1(a) challenged the admissibility of the evidence of complaint recounted by BP, Ms Clarke and Mr Mandis. On the applicant’s case, it was necessary to consider that ground with the following ground 1(b), which alleged that the judge erred in the directions he gave to the jury with respect to how they could use the evidence of those witnesses. The reason for considering the two grounds together derives from the fact that no objection was taken to the admission of the evidence. There was, however, discussion as to the use to which it could be put. To understand that discussion, it is necessary to briefly identify the legal framework within which the discussion took place.

17. Evidence of complaint is hearsay evidence because it is either evidence given by the complainant recounting his or her own out of court statement, or a witness’ account of what the complainant told him or her. It is nevertheless admissible pursuant to s 66(2) of the Evidence Act 1995 (NSW) if, when the victim made the complaint, the matter complained of was “fresh” in his memory. It was clear from the evidence that the matters complained of, which formed the basis of the two charges, occurred some 10 years earlier. Both the prosecutor and defence counsel assumed that the subject of the complaints could not then be “fresh” in the victim’s memory. In doing so, they appear to have operated on the basis of the law as explained in Graham v The Queen,^[18] where Gaudron, Gummow and Hayne JJ stated that the word “fresh” in that context meant “recent” or “immediate”. The core meaning was thus intended to identify a temporal relationship between the occurrence of the asserted fact and the time of making the representation. ^[19]

    18. (1998) 195 CLR 606; [1998] HCA 61.

    19. Graham at [4]; see also Callinan J (Gleeson CJ agreeing) at [34].

18. Subsequently, s 66 was amended to include s 66(2A), which requires that the phrase “fresh in the memory” is to be assessed having regard to the nature of the event concerned, the age and health of the person, and the period of time which had elapsed between the occurrence of the fact and the making of the representation. That amendment led the High Court, in The Queen v Bauer (a pseudonym), ^[20] to observe that, in identifying freshness, “it has rightly come to be accepted by intermediate courts of appeal that the nature of sexual abuse is such that it may remain fresh in the memory of a victim for many years.”

    20. (2018) 266 CLR 56; [2018] HCA 40 at [89].

19. The history of how this occurred has been recounted by N Adams J in Kassab (a pseudonym) v R. ^[21] That history need not be repeated here: s 66(2A) was not addressed in the present case. Rather, the complaint evidence was not admitted as evidence of the truth of the statements made by the victim, but on the alternative basis that it was relevant to the credibility of the victim, who gave evidence of the events in question.

    21. [2021] NSWCCA 46 at [332]-[338] (Johnson and Ierace JJ agreeing).

20. The admissibility of the evidence as affecting credibility is addressed in s 108(3) of the Evidence Act. Section 108 relevantly provides:

108    Exception: re-establishing credibility

(1)    The credibility rule does not apply to evidence adduced in re-examination of a witness.

(2)    (Repealed)

…

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

…

(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.

21. Section 108 thus provides an exception to “the credibility rule”. The credibility rule, established by s 102 (in combination with s 101A), is that evidence which goes only to the credibility of a witness is not admissible. Section 108(3) provides an exception, namely that the rule does not apply to evidence of a prior consistent statement of a witness if there is a challenge to the witness’ evidence as having been “fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion”. In those circumstances evidence of the prior consistent statement can be adduced by leave of the Court.

22. There having been no objection to the prosecutor leading the evidence of the complaints made in 2019, the basis on which it was proffered did not arise for consideration until the judge and counsel commenced discussions as to the appropriate directions to be given to the jury. At that stage the prosecutor stated that the evidence had not been led as evidence of the truth of the statements but as going to the credibility of the victim’s evidence. ^[22] Despite this, the applicant challenged its admissibility on five grounds, namely:

    22. Tcpt, 9/06/21, p 147(33).

1. Leave to adduce the evidence had not been sought or granted;

2. There was only limited cross-examination that the evidence was the result of suggestion;

3. The representations to BP were not in fact prior consistent statements given the nature of the allegations;

4. The representation to Ms Clarke was devoid of content; and

5. The representations to Ms Clarke and Mr Mandis were too late to answer any challenge that they were the result of suggestion.

Leave to adduce evidence

23. While it is true that s 108(3) of the Evidence Act provides for the Court to give leave to adduce evidence of a prior consistent statement, it does not follow that there must be a formal application and a ruling on that application. The evidence was led without objection. Furthermore, in the course of discussion between the judge and counsel as to how the summing up should proceed, defence counsel accepted that the evidence went to the credibility of the complainant, to which the prosecutor said that “the complaint in 2019 certainly wasn’t led for the purpose that it would be used as evidence of the truth”. ^[23] The discussion followed a statement by the trial judge that he would give “strict instructions” in relation to the complaint and the tendency evidence. ^[24] Understandably, counsel for the accused raised no issue in that regard. He did not suggest that the complaint evidence should be disregarded because it was not properly admissible.

    23. Tcpt, p 147(5) and (33).

    24. Tcpt, p 147(1).

24. In these circumstances, there was, in effect, an implied grant of leave. No objection having been taken, the applicant cannot realistically challenge the admissibility of the evidence unless he can show that, had leave been sought, it would probably not have been granted. Indeed, he needs the leave of this Court to raise that issue, in the context of r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). That leave, in turn, would only be granted if he were able to demonstrate inadmissibility and prejudice to the applicant or a reasonable explanation for the failure to take objection. At least implicitly, that hurdle is sought to be overcome by the following submissions, both as to lack of suggestion and lack of relevance.

25. First, it was said that there was no justification for relying on evidence of complaint because there was “only limited cross-examination” suggesting fabrication. ^[25] That submission cannot be accepted. The whole of the cross-examination was not lengthy: it covered some 6 pages of transcript. The suggestion of lying was made in clear and explicit terms: ^[26]

    25. Applicant’s written submissions, par 10.

    26. Tcpt, 16/04/21, p 16(10).

“Q.   Do you remember saying to your grandmother that your mother made you tell lies about your life?

A.   A lot of the time – well, not a lot of the time but it has happened.

Q.   When you spoke to the police and told them about the things that you say [the accused] did, were those things that your mother had told you to say?

A.   No, actually my mum is completely with me on this and she is very happy that I’m sticking up for myself and, you know, trying to get right done. So, it’s completely all truth and none of it is a lie.

Q.   Do you remember saying to the police the second time that you were interviewed – so, the first time in 2019 – the second time you spoke to the police, that you were very suggestible to adults; do you remember that as being something that you said?

A.   Yes.

Q.   Was that something that your mother said to you?

A.   No.

Q.   Was that something that someone else said to you?

A.   No, it’s something that I came up with myself because it’s very true.”

26. At least in principle, evidence of complaint was admissible to rebut a clear and explicit insinuation of fabrication, reconstruction or the result of a suggestion.

Challenge to relevance

27. The final three issues raised by the applicant were, in effect, all directed to the relevance of the particular complaints. The first was the submission that representations to BP did not reflect the charges of fellatio but related to different sexual activity.

28. The applicant submitted that BP’s account of the conduct of the applicant was not consistent with that described in the charges. It involved watching the applicant masturbate, rather than the victim being forced to fellate his uncle. While it is true that the actual sexual conduct alleged was different, it was open to the jury to conclude that, as BP stated, he had “since that day… heard things from other people” and the stories got confused. ^[27] Further, BP was cross-examined on the basis of a statement he had made to police in October 2019, some three months (or perhaps less) after the victim had spoken to him. It was put to him that he told police that the victim had described touching, not sexual assault. ^[28] In short, nothing was made in the course of cross-examination of the distinction between fellatio and masturbation. There is no doubt that the complaint was of sexual misconduct and that the victim found it difficult to speak of the matter to BP.

    27. Tcpt, 08/06/21, p 14(10).

    28. Tcpt, p 15(3)-(13).

29. Secondly, it was submitted that the complaint to the grandmother, Ms Clarke, was devoid of detail and therefore did not assist in rebutting a suggestion of fabrication or lying at the direction of the mother. However, that evidence should not be viewed in isolation from the evidence of Mr Mandis, who was contacted by the grandmother and who heard a complaint in terms entirely consistent with the charges which were laid shortly thereafter.

30. The real challenge in relation to the latter two statements is that they occurred too late to rebut a suggestion of fabrication. However, the temporal element was not the only relevant consideration. The reliance on the material was succinctly explained to the jury by the prosecutor. After noting that the victim said he spoke to BP in August 2019, the prosecutor suggested that that accorded with BP’s evidence that the victim told him something “about the middle of 2019”. ^[29] The prosecutor also suggested that BP may have been confused as to the precise nature of the complaint. She continued: ^[30]

“What the Crown says to you that you can do with that conversation, that complaint to [BP], is that you can assess [the victim’s] credibility. Look at how that complaint to [BP] comes about. [The victim] told you that [BP] was making a joke about an uncle molesting a kid, and [the victim] decided to explain to [BP] why that wasn’t funny. There is an air of truth as to why the victim decided to tell [BP] at that stage. [The victim] felt comfortable enough with his friend, [BP], to explain to him why such a joke was not funny. Just think about that. Someone like [the victim], carrying about that secret, and here’s his good friend making a joke of it. You would accept, members of the jury, in my submission, that that is why [the victim] decided to tell [BP] at that time. [The victim] told [BP]. [BP] encouraged [the victim] to talk to someone about it, and he did. He told his grandmother, Ms Clarke, and then he spoke to his caseworker before going to the police. He spoke to those people close to him that he trusted. The Crown says to you that what is important about that is who he told and how it came out. The important part about that is that [the victim’s] mother… had no part in that. She had no part in that complaint to [BP]. She had no part in that complaint to Ms Clarke, Michael Mandis or the police in 2019. You might remember that it was put to [the victim] in cross-examination that his mother had told him to say these things. He answered no to that, and you have the evidence now of how it was that he came to be reporting this in 2019, and with that evidence, in my submission, members of the jury, you could be satisfied that [the victim] was telling the truth and this wasn’t about his mother putting him up to this. He told someone because he felt it was time to speak up.”

29. Tcpt, 10/06/21, p 176(48).

30. Tcpt, p 177(10).

31. It may be seen that reliance on the complaint evidence was limited to its effect on the credibility of the victim. There was a logical and reasonable connection between each part of the complaint evidence and the victim’s credibility. It was open to the prosecutor to rely upon that material in this way.

32. Counsel for the accused, in his address, dealt at some length with the complaint evidence, relying upon the differences between the evidence given by BP and that given by Mr Mandis and appearing in the statement to the police. He did so to challenge the victim’s reliability.

33. In these circumstances, there is no reason to doubt the admissibility of the evidence as evidence going to credibility of the victim. In circumstances where no objection was taken to the evidence, it cannot be said that, had objection been taken, a different result would have eventuated. There was no miscarriage of justice.

Ground 2 – tendency direction

34. There were two elements to the challenge with respect to the use made by the prosecution of tendency evidence and the directions given to the jury. The prosecutor alleged that the uncharged act, namely touching the victim’s “doodle”, demonstrated a sexual interest in the victim and a willingness to act on it. With respect to the two charges, each was relied upon as demonstrating a similar interest and tendency to act on it.

35. The gravamen of the applicant’s challenge was that the jury were directed that they did not need to be satisfied beyond reasonable doubt as to each of the three items of tendency evidence before being entitled to take it into account in determining whether, with respect to each count, they were satisfied beyond reasonable doubt of the guilt of the accused. This reasoning process was described as “incoherent”, on the basis that “a fact cannot be proved by a chain of reasoning which assumes the truth of that fact”. ^[31] Further, it was submitted that the tendency direction undermined the general direction as to proof beyond reasonable doubt with respect to each offence charged, a direction which had been given earlier in the trial and repeated in the course of the summing up. At least with respect to the charged conduct, the jury was being directed to address the same factual circumstances according to two different standards of proof. It was submitted that “no High Court authority holds that the jury need not be satisfied of a charged act beyond reasonable doubt before it can be used for tendency purposes”. ^[32]

    31. Applicant’s written submissions, par 19.

    32. Applicant’s written submissions, par 20.

36. The reference to “no High Court authority” was, as explained in oral submissions, ^[33] based on distinguishing the following passage in The Queen v Bauer dealing with directions:

“86   … Contrary to the practice which has operated for some time in New South Wales, trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt. And, as explained earlier in these reasons, a trial judge is precluded from giving such a direction in Victoria.” [Footnotes omitted.]

33. CCA Tcpt, 13/05/22, p 19(30).

37. Much was said in Bauer in relation to multiple complainant sexual offence cases, where there may be a need for some common feature in order to render an offence against one person admissible with respect to a charged offence against another person. ^[34] However, as the applicant correctly noted, when it came to the statements as to “the directions ordinarily to be given to a jury” the judgment restricted itself to “a single complainant sexual offences case where the Crown is permitted to adduce evidence of uncharged acts as evidence of the accused having a sexual interest in the complainant and a tendency to act upon it”. ^[35]

    34. Bauer at [58].

    35. Bauer at [86] (emphasis added).

38. Although the observations in this passage in Bauer were limited to tendency based on uncharged acts, the underlying principle is derived from the reasoning in Shepherd v The Queen. ^[36] The Court also referred in support of its reasoning to a passage in the judgment of Gleeson CJ in HML v The Queen ^[37] to the following effect:

“29   It is the elements of the offence charged that, as a matter of law, must be proved beyond reasonable doubt.  (I leave aside presently irrelevant cases where insanity or some other defence is raised.)  If evidence of a fact relevant to a fact in issue is the only evidence of the fact in issue, or is an indispensable link in a chain of evidence necessary to prove guilt, then it will be necessary for a trial judge to direct a jury that the prosecution must establish the fact beyond reasonable doubt; generally, however, the law as to standard of proof applies to the elements of the offence, not particular facts. … Trial judges commonly, and appropriately, direct juries in terms of their possible satisfaction of particular matters relied upon by the prosecution, without referring to a standard of proof in relation to each such matter.  To do otherwise would risk error.”

36. (1990) 170 CLR 573 at 584-585 (Dawson J); [1990] HCA 56.

37. (2008) 235 CLR 334; [2008] HCA 16.

39. In principle, the same reasoning applies to cross-admissible evidence of charged acts. It is not easy to envisage a circumstance in which the commission of one offence against a victim will be an indispensable step in the reasoning that the other offence was committed. Accordingly, in principle it will usually be correct (and was correct in the present case) to say that, in assessing one charge, the jury could take into account the evidence of the activity said to constitute the other charge, without being satisfied at that point that it was proved beyond reasonable doubt. ^[38] If Bauer were to be distinguished in the manner submitted by the applicant it would produce the odd result that the Crown could choose between making its case stronger on one count by not charging another act, or pursuing convictions on both acts.

    38. Merza v R [2021] NSWCCA 269 at [25]-[27] and [273].

40. Nevertheless, the applicant was correct to note that such a direction would be apt to undermine the general directions concerning proof beyond reasonable doubt in respect of each charge. That danger calls for some care in formulating directions; it does not undermine the general principle. For example, in Bauer the Court noted that:

“[86]   The trial judge should … stress that it is not enough, however, to convict the accused that the jury may be satisfied of the commission of the uncharged acts or that they establish that the accused had a sexual interest in the complainant, on which the accused had acted in the past; it remains that the jury cannot find the accused guilty of any charged offence unless upon their consideration of all of the evidence relevant to the charge they are satisfied of the accused’s guilt of that offence beyond reasonable doubt.”

41. To similar effect, such a direction may be necessary in relation to cross-admissible charged acts. Where there is no material difference in the evidence supporting one charge as against the other, it is, of course, unlikely that the jury would convict of one, but not the other: indeed, such a result might be relied upon to suggest a compromise which could not be justified on the evidence. Nevertheless, the jury may be entitled in a particular case to be satisfied of the guilt of the accused beyond reasonable doubt because there are two or more similar activities recounted in the evidence. The important direction is that having weighed all the relevant evidence, the jury must be satisfied beyond reasonable doubt that each element of each charge has been established.

42. The trial judge gave appropriate directions in relation to the two counts on the indictment being relied on for the purposes of demonstrating a tendency, namely a tendency to have a sexual interest in the victim and to act upon that interest. The judge continued: ^[39]

“You will need to consider the evidence relating to this alleged conduct of the accused and decide whether he did in fact conduct himself in the way the Crown alleges on those occasions. In doing so you do not consider each of the acts in isolation: you should consider all the evidence and decide what conduct you are satisfied occurred. Although you are looking at the two episodes of conduct that are the subject of the charges, you are not, in this exercise, considering whether those episodes of misconduct have been proven beyond reasonable doubt… [Y]ou do not consider each of these episodes of conduct in isolation but you look at them collectively to decide what conduct you are satisfied occurred for the purposes of tendency reasoning. You consider all three of the episodes of conduct within this context and consider whether the tendency for which the Crown contends has been established. It does not follow from this that you are satisfied beyond reasonable doubt of the guilt of the accused; it is simply part of the process of reasoning along the pathway toward whether or not you accept beyond reasonable doubt the evidence of the complainant with regard to the two charges.”

39. Summing up, p 27.

43. Insofar as the applicant complained that the reasoning was “incoherent”, this was premised on the assumption that the Crown, in a linear process, sought to prove the commission of an offence (at a standard of proof less than beyond reasonable doubt), and then relied on that finding to prove the tendency, and then relied on the tendency to prove the offence. However, this does not accurately represent the reasoning process involved. It is the tendency that is relied on as circumstantial evidence in proof of the charge on the indictment. The proper approach is to have regard to all the evidence of relied on in proof of the tendency as evidence of the tendency alleged. To the extent that the jury is satisfied of the existence of the tendency, the tendency may be relied on in proof of the charge. Given this process, it is preferable not to direct a jury to make findings as to the conduct relied on in proof of a charge. Rather the jury should be directed with respect to finding the alleged tendency.

44. It is accepted that the trial judge directed the jury (in conformity with the direction in the Bench Book) to determine “what conduct you are satisfied occurred” for the purpose of determining whether the tendency was established, where that conduct was also relied in support of a count in the indictment. However, when read in the context of the summing up as a whole, including careful directions as to the onus and standard of proof, the need for separate consideration of each count, the elements of the offences, the need to accept the evidence of the complainant as to the occurrence of each count, and the direction that the tendency, if proved, did not prove guilt of the offences but was “simply part of the process of reasoning along the pathway towards whether or not you accept beyond reasonable doubt the evidence of the complainant with regard to the two charges”, there was no risk in this case that the onus and standard of proof were not understood and properly applied.

45. In rejecting the New South Wales practice of directing that uncharged acts must be proved beyond reasonable doubt, the judgment in Bauer noted that in Victoria a trial judge is precluded from giving such a direction. That was because s 61 of the Jury Directions Act 2015 (Vic) provided that the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are (a) the elements of the offence charged or an alternative offence; and (b) the absence of any relevant offence. Further, s 62 removed any common law obligation to give a jury a direction that other matters must be proved beyond reasonable doubt. A note to s 62 identifies as one of the rules abolished that requiring that a jury be directed that “it must be satisfied beyond reasonable doubt of uncharged acts that the jury would use as a step in their process of reasoning towards guilt”.

46. There is now legislation in New South Wales to similar effect, which was in force at the time of the applicant’s trial. Thus, s 161A of the Criminal Procedure Act 1986 (NSW) provides:

161A Direction not to be given regarding tendency or coincidence evidence

(1)   A jury must not be directed that evidence needs to be proved beyond reasonable doubt to the extent that it is adduced as tendency evidence or coincidence evidence.

(2)   If evidence is adduced as both tendency evidence or coincidence evidence and as proof of an element or essential fact of a charge before the jury, the jury may be directed that the evidence needs to be proved beyond reasonable doubt, but only to the extent that it is adduced as proof of the element or essential fact.

(3)   Subsection (1) does not apply if a court is satisfied—

(a)   there is a significant possibility that a jury will rely on an act or omission as being essential to its reasoning in reaching a finding of guilt, and

(b)   evidence of the act or omission has been adduced as tendency evidence or coincidence evidence.

Although this provision was not referred to in the course of the trial, the direction given by the trial judge conformed to the requirements of s 161A.

47. In oral submissions, counsel for the applicant submitted that subs (1) “confirms the position in Bauer that uncharged acts do not need to be proved beyond reasonable doubt”. ^[40] That proposition assumed that the reasoning in Bauer did not apply to charged acts which were cross-admissible and implied that subs (1) should be read in a similar way. As has been noted, the reasoning in Bauer did not cover the field; there is no reason to read subs (1), which deals with evidence which is adduced “as tendency evidence”, as restricted to some classes of tendency evidence and not applicable to others. Such a reading is contradicted by subs (2) and subs (3), both of which recognise that the evidence may be used for non-tendency purposes.

    40. CCA Tcpt, 13/05/22, p 20(33).

48. With respect to subs (2), counsel submitted that the direction given did not conform to that provision because, in considering “whether a charged act occurred, the jury can only come to that conclusion beyond reasonable doubt and so, if you’re using the happening of a charged act to support tendency reasoning which might be relevant to establishing other charges, you do need to be satisfied of it beyond reasonable doubt before you can use it because if not you’re having the jury apply a different standard of proof.” ^[41]

    41. CCA Tcpt, p 19.

49. There are, perhaps, two elements to the submission. One element is to require that cross-admissible tendency evidence in relation to charged acts must be subject to rules which differ from those applicable to other tendency evidence. Neither principle nor statute supports such a conclusion. The second element, though perhaps unexpressed, is a concern that the jury will not be able to apply different standards of proof with respect to use of charged activity to demonstrate tendency and in determining whether the charge has been proved beyond reasonable doubt. That exercise is potentially prejudicial to an accused because the jury may slip into a verdict based on satisfaction by a lesser standard.

47. Whilst accepting that the reasoning process calls for a degree of care on the part of a jury, this is by no means the only area in which careful instructions are required to ensure evidence adduced for one purpose is not improperly used for another. Where the law requires such distinctions to be made, it is no doubt true that care must be taken in formulating directions to the jury. However, the directions in the present case were carefully formulated and conformed to the legal requirements.

48. It follows that Ground 2 must be rejected.

Conclusion

52. The Court should make the following orders:

1. Grant the applicant leave to appeal from his convictions in the District Court.

2. Dismiss the appeal.

53. HAMILL J: I agree with Basten AJA.

54. DHANJI J: I agree with Basten AJA.

**********

Endnotes

Decision last updated: 29 June 2022