Kautoga v The Queen

[2017] NSWCCA 107

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Kautoga v R [2017] NSWCCA 107
Hearing dates:	8 May 2017
Date of orders:	24 May 2017
Decision date:	24 May 2017
Before:	Beazley ACJ [1]; Adamson J [2]; Wilson J [35]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against interlocutory judgment – refusal by trial judge to sever indictment – use of coincidence and tendency evidence – whether risk of prejudice to applicant arising from evidence inadmissible for one purpose but admissible for another can be ameliorated by jury directions – where trial judge finds it is in interests of justice for counts on indictment to be tried together – whether trial judge made an error in exercise of discretion – HELD –appeal dismissed – no error in decision to refuse application for separate trials and for severance of indictment
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5F(3)(a) Criminal Procedure Act 1986 (NSW), ss 21, 21(2), 29, 29(1)(c), 29(3) Evidence Act 1995 (NSW), ss 97, 98, 101, 101(2), 137
Cases Cited:	DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 House v The King (1936) 55 CLR 499 R v Gale; R v Duckworth (2012) 217 A Crim R 487; [2012] NSWCCA 174
Category:	Principal judgment
Parties:	Ratu Pio Kautoga (Applicant) Regina (Respondent)
Representation:	Counsel: G James QC (Applicant) T Smith (Crown)   Solicitors: Lenz Legal (Applicant) Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2014/195264
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 8 March 2017, 13 March 2017 Before: Woodburne SC DCJ File Number(s): 2014/195264

Judgment

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

2. ADAMSON J: The applicant seeks leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) against an order made by Woodburne SC DCJ refusing his application, by notice of motion, that the five counts in the indictment (with the exception of counts 2 and 3) be tried separately.

Relevant legislative provisions

3. As the motion turned, at least in part, on the application of various provisions, it is convenient to set them out.

Criminal Procedure Act 1986 (NSW)

4. Section 29 relevantly provides:

“29 When more than one offence may be heard at the same time

(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:

. . .

(b) the offences arise out of the same set of circumstances,

(c) the offences form or are part of a series of offences of the same or a similar character.

. . .

(3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.”

5. Section 21 relevantly provides:

“21 Orders for amendment of indictment, separate trial and postponement of trial

. . .

(2) If of the opinion:

(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or

(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,

the court may order a separate trial of any count or counts of the indictment.

. . .

(6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.”

Evidence Act 1995 (NSW)

6. Section 97 of the Evidence Act relevantly provides:

“97 The tendency rule

(1) Evidence of the . . . 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.

. . .”

7. Section 98 of the Evidence Act relevantly provides:

“98 The coincidence rule

(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally 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.

Note : One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

. . . “

8. Section 101 of the Evidence Act relevantly provides:

“101 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.”

The notice of motion for severance and separate trials

The orders sought on the applicant’s motion

9. By notice of motion filed on 27 February 2017 the applicant sought orders severing the counts on the indictment, such that counts 2 and 3 would be tried together and counts 1, 4 and 5 would be tried separately from those counts and each other.

The material before the trial judge on the motion

10. The trial judge had regard to the full Crown brief in determining the motion as well as her rulings on evidence referred to below. In annexure “A” to the reasons for decision, her Honour summarised the Crown case by reference to the material in the brief. For present purposes it is not necessary to canvass this material in detail. The Crown case on the five counts on the indictment in the summarised in the table below, which has been ordered chronologically.

Count	Date and time	Location	Complainant/ description given of applicant	Conduct
1	22.1.13, 7.10pm	Park in Canterbury; 1.5km from address specified by applicant on passenger movement record filled in on 25.12.12. Applicant was seen returning to that address in May 2013.	AP/ described applicant as “African” and wearing a blue and white singlet; also described this way by other witnesses.	Approached AP who was exercising in park; accosted her and put finger in vagina; he ran away when she resisted and raised alarm. Other witnesses in vicinity. Applicant ran off without speaking to AP.
2	10.3.13, 2.40am	Residence in Berry Ave, Fairlight, where applicant was staying overnight; sleeping on couch in bedroom where MH and her partner were sleeping.	MH/ known to applicant.	Approached MH who was naked and in bed as well as MH’s boyfriend’s sister, AL, who was in another bedroom. Penetrated MH’s vagina with his fingers. MH woke up and roused her partner to tell him what had happened. They noticed that the applicant left the room. MH’s partner followed the applicant and told MH, when he returned to the bedroom that the applicant had gone for a walk.
4	10.3.13, 6am	Manly Beach, 1.5kms away from location in count 2.	SW (aged 50 years)/ described applicant as 25-years old, Islander appearance with dark olive complexion; fuzzy hair; athletic build; reddish T-shirt with dark nylon shorts.	The applicant grabbed SW and covered her mouth. He pulled her to the ground and put his fingers into her vagina. SW resisted. The applicant ran away. He did not speak to SW during the encounter.
5	10.3.13, 6.20am	Sydney Road, Fairlight, 750-800ms away from location in count 4 and 400-500ms away from location in count 3 (see below)	TD (aged 24 years)/ described applicant as 25-30 years, dark skin, possibly African or Brazilian; short, dark, shaved head; 180-185cms tall with athletic build; wearing dark-coloured short-sleeved T-shirt that was tight around his arm muscles.	The applicant grabbed TD by putting his hand up her skirt and “cupped” her vagina on the outside of her underwear. TD pushed him away and screamed. The applicant walked away and did not say anything to TD.
3	10.3.13, 7-7.30am	Residence in Berry Ave, Fairlight	MH (same complainant as for count 2)	The applicant touched the inside of MH’s left thigh when her boyfriend was out of the room. MH said, “Don’t”.

11. In addition to the matters referred to above, the Crown referred the trial judge to evidence, which it proposed to tender at trial, which was relevant to the issue of identification. The Crown relied on evidence that the applicant trained with a football team known as the Manly Marlins. Various items of clothing were located when a search warrant was executed on the applicant’s residence in October 2014, including a royal blue, white and black singlet; a royal blue ASICS-brand singlet; and a blue Manly Marlins shirt. Although no blue-and-white Manly Marlins singlet was located at the applicant’s home in October 2014, the Crown foreshadowed that it would seek to persuade the jury to draw the inference that what AP and the witnesses to count 1 saw the assailant wearing was a Manly Marlins singlet and that it was the applicant who was the assailant.

12. The Crown also provided this Court with an aerial photograph which showed the alleged locations of counts 2, 3, 4, and 5, as well as the locations of CCTV cameras where a male was said to have been sighted at various times together with a table of times when a male (on the Crown case, the applicant) had been sighted. The table recorded that the male had entered Shore Club at South Steyne Manly at 11.35pm on 9 March 2013 and left at 1.38am on 10 March 2013. The table also recorded sightings of a male on his way from the Berry Avenue residence to Manly beach and from the beach back to Berry Avenue between 5.40am and 6.30am.

The tendency notice

13. The Crown provided to the trial judge a tendency notice which it had served pursuant to s 97 of the Evidence Act. It relied on the following conduct as relevant to the particular counts set out:

Feature of conduct

Counts said to exhibit feature

Accost unaccompanied women

1, 4, 5

Unthreatening approach

1, 2, 3, 4, 5

Alleged offence occurred in a public place

1, 4, 5

Women unknown to accused

1, 4, 5

No obvious witnesses

1, 4, 5

2 and 3 (complainant’s boyfriend asleep)

Undisguised face

1, 2, 3, 4, 5

Nothing said by accused

1, 2, 3, 4, 5

Touching genital area and/ or digitally penetrate

1, 2, 3, 4

Departure on foot after resistance and/ or alarm raised

1, 4, 5

Accused allegedly approached young female asleep in bed

2 and conduct towards AL

14. The tendency notice specified that the tendency evidence bears on facts in issue, including: whether the accused sexually and/or indecently assaulted each of the complainants of counts 1-5; and whether there is an innocent explanation for each of the facts alleged by the complainants.

The coincidence notice

15. The Crown provided to the trial judge a coincidence notice which it had served pursuant to s 98 of the Evidence Act. It relied on the same categories as set out above with respect to the tendency notice, as well as the following:

Topic/ feature/ description

Counts to which relevant

Alleged offender dark-skinned

1, 2, 3, 4, 5

Alleged offender between 180-190cms

1, 4, 5

2-3 complainant identifies applicant

Alleged offender large, athletic build

1, 4, 5

2-3 complainant identifies applicant

Alleged offence occurred in location closely proximate to where accused was residing/ staying

1, 2, 3, 4, 5

Offence between approximately 2am and 7am on 10.3.13

2, 3, 4, 5

Offence occurred in Manly/ Fairlight region

2, 3, 4, 5

Alleged conduct at Berry Avenue, Fairlight

2, 3

Biological consistency between alleged offender and applicant

4 (Certificate of Analysis)

2-3 complainant identifies applicant

The applicant’s submissions on the motion before the trial judge

16. The applicant argued that there was no statutory basis for the joinder under s 29 of the Criminal Procedure Act; that he would be prejudiced if the proceedings for the counts (except 2 and 3) were heard together; and that the interests of justice required four separate trials.

Evidentiary rulings made by the trial judge relevant to the motion for severance and separate trials

17. Rulings on the admissibility of certain evidence were made at the same pre-trial hearing at which the motion for a separate trial was determined. Her Honour relevantly made the following three rulings:

1. The Crown cannot rely on the evidence of the applicant’s state of mind at the time of each of counts 2, 3, 4, and 5 in support of any of the other counts.

2. The evidence on counts 4 and 5 is admissible as coincidence evidence on count 1 and vice versa.

3. The evidence of counts 4 and 5 is admissible as tendency evidence on counts 2 and 3 but only if the jury is satisfied that the applicant was the person involved in counts 4 and 5.

The trial judge’s reasons for decision

18. The trial judge referred to s 29 (which provides for more than one offence to be heard at the same time) and s 21 of the Criminal Procedure Act (which provides for separate trials). Her Honour addressed the similarities and differences between the separate counts and concluded that the offences in counts 1-5 form, or are part of, a series of offences of the same, or similar, character within the meaning of s 29(1)(c) of the Criminal Procedure Act. Her Honour considered the interests of justice under s 29(3) and other related matters under s 21(2) (relating to potential prejudice or embarrassment to the applicant by reason of being charged with more than one offence in the indictment). Her Honour addressed the use to which particular categories of evidence could be put to determine the matters relevant to s 29(3) and s 21(2).

The state of mind evidence

19. The first category considered was “transactional” or “state of mind” evidence, which principally concerned the applicant’s state of mind on 10 March 2013. The Crown relied on this evidence in support of its case that, throughout the early hours of 10 March 2013, the assailant in counts 4 and 5, and the applicant in counts 2 and 3, displayed an interest in engaging in brazen non-consensual sexual activity with women, including digital penetration and touching of the vagina. Her Honour accepted that proof of the applicant’s state of mind for counts 2 and 3 was so close in time to the commission of counts 4 and 5 as to be relevant both to state of mind and identity.

20. Her Honour found:

“49   I have concluded that the conduct of the accused towards [AL] and MH in the early hours of 10 March 2016 is part of a series of connected events, capable of proving the state of mind/intention of the accused. By his conduct the accused demonstrated he was intent on seeking out and taking if possible the opportunity to gratify his sexual urge by engaging in brazen non-consensual activity with women (in the form of touching women on/in the genitals).”

21. The trial judge was satisfied that the state of mind evidence could rationally affect the assessment of whether it was the applicant who committed each of counts 4 and 5. However, in the exercise of her discretion (under ss 137 and 101 of the Evidence Act), the trial judge decided that, in order to “eliminate any risk of danger of unfair prejudice through the state of mind evidence being given too much weight”, the jury should be directed that they could only take into account the tendency evidence of counts 4 and 5 in determining counts 2 and 3 if they were satisfied that the applicant was the person involved in counts 4 and 5. This aspect of her Honour’s decision is reflected in the evidentiary ruling (3) above.

Coincidence evidence

22. Her Honour addressed the cross-admissibility of the evidence on counts 1, 4 and 5 under s 98 of the Evidence Act by reference to the process outlined in R v Gale; R v Duckworth (2012) 217 A Crim R 487; [2012] NSWCCA 174 at [31] per Simpson J (McClellan CJ at CL and Fullerton J agreeing). Her Honour addressed the similarities and differences between counts 1, 4 and 5 and concluded that the dissimilarities did not detract from the capacity of the evidence to affect the probability that the offences were committed by the same offender. The trial judge also addressed the other circumstantial evidence that the Crown intended to adduce in support of its case on counts 1, 4 and 5, including the descriptions of the assailant; where the applicant was residing or staying at a time proximate to the alleged offences; the similarity between the clothing described by the witnesses and the training singlets worn by the Manly Marlins, with which the applicant was associated; CCTV footage in Manly; and the evidence that the applicant could not be excluded as a minor contributor to the DNA mixture on the internal waistband of the gym pants of SW (the complainant in count 4).

23. The trial judge also assessed the prejudice to the accused (by reference to ss 101(2) and 137 of the Evidence Act) but considered that the risk of the danger of unfair prejudice could be obviated by directions as to the use to which such evidence could be put.

Tendency evidence

24. The trial judge addressed the terms of s 97 when considering the question whether evidence of counts 1, 4 and 5 was admissible on counts 2 and 3.

25. Her Honour found:

“126   If the jury were to be satisfied beyond reasonable doubt that the accused was in fact the perpetrator of counts 4 and 5 then it would be open to the jury to find that the accused had a tendency to act in a particular way namely in engaging in brazen non-consensual sexual activity with women by touching them on their genital area and/or digitally penetrating them. I also consider that proof of count 1 would contribute to a finding of such tendency however in directions I would propose to limit the use of tendency evidence to that arising from proof of counts 4 and 5. That will enhance a direction I will give about the availability of different verdicts on different counts.

127   In my view the tendency evidence would render it more probable that on the occasions of counts 2 and 3 the accused acted as asserted by MH. Such tendency evidence would be relevant to whether the accused had in fact committed the acts the subject of charge. I consider that such tendency evidence would have significant probative value in relation to proof of counts 2 and 3, particularly in circumstances where the credibility of the complainant MH is likely to be in issue and where otherwise it might be considered that it would be unlikely for a person to assault a woman while she is sleeping in bed with her partner or while there are others in the household.”

26. Having addressed the issues of admissibility and use which would arise if the five counts on the indictment were not severed, her Honour concluded that it was not in the interests of justice for the counts to be heard separately and recorded her satisfaction that the applicant would not be prejudiced or embarrassed in his defence by reason of his being charged with counts 1-5 on the one indictment.

Consideration

27. Mr James QC, who appeared on behalf of the applicant, accepted that the evidence of each count was potentially relevant to each other count. However, he submitted that her Honour was in error in finding that the offences (except counts 2 and 3) were “part of a series of offences of the same or a similar character” (s 29(2)(c)) and contended that it was not open for her Honour to determine that it was in the interests of justice for the other counts, and particularly count 1, to be tried with counts 2 and 3.

28. As the question of whether to sever counts on an indictment involves the exercise of a discretion, the applicant must show error of a particular kind. The type of error that must be demonstrated includes the following: acting on a wrong principle; allowing extraneous or irrelevant matters to guide or affect the decision-maker; mistaking the relevant facts; failing to take into account some material consideration; or, in circumstances where no specific error of such kind can be demonstrated, where the result is, upon the facts, unreasonable or plainly unjust such that it can be inferred that there has been some error or miscarriage in the exercise of the power: House v The King (1936) 55 CLR 499 at 504-505; DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [70] per Spigelman CJ; [78] per Allsop P; [157] per Simpson J (Kirby and Schmidt JJ agreeing).

29. There is a further reason why this Court ought be restrained in interfering with the decision to refuse an application for separate trials: the applicant is protected by his right, if circumstances change, to renew the application; and, if he is convicted, to argue that the trial, as it was actually conducted, was unfair. In DAO v The Queen, Spigelman CJ (Allsop P, Simpson, Kirby and Schmidt JJ agreeing) said:

“[12] The decision to admit tendency evidence is clearly of considerablesignificance for the trial. Nevertheless, it is an interlocutory ruling. Thedecision to reject the application for separate trials can be reversed by the trial judge: see R v Wright (1990) 90 Cr App R 325 at 338–340; Saunders at353–354.

[13] Notwithstanding the potential power of the evidence of each of the other two complainants in the third case, the impact on the fairness of the trial will be affected by the course of the trial. His Honour’s ruling was necessarily made on the basis of an expectation as to what the evidence of each complainant will be. By reason of their evidence in chief, and perhaps particularly by reason of their cross-examination, the force and nature of the complainants’ evidence may differ from that which can be anticipated at the present stage of proceedings. The course of the trial may lead to the decision being reopened.

[14] Furthermore, the significance and weight to be attached to the evidence can be affected by the nature and strength of directions given by the trial judge to the jury. These are matters capable of further assessment on appeal if the applicant is convicted in relation to one or more of the complainants.”

30. The decision, made before a trial, not to sever counts on an indictment, necessarily requires a measure of prediction as to how a trial will unfold; what evidence will be admissible on one count and not another; and whether directions will be sufficient to ameliorate any prejudice which could be occasioned to an accused by impermissible use of evidence that can be used for one purpose but not for another. To the extent to which such issues could be anticipated, her Honour’s reasons demonstrate a careful consideration of how they would be resolved at trial by directions to the jury. This process is pre-eminently one for the trial judge. It is affected by the view of the trial judge as to the admissibility of evidence and the directions which will ultimately be given to the jury if the evidence is led as the Crown has foreshadowed at the pre-trial hearing.

31. As Allsop P explained at [100] in DAO v The Queen, when reviewing a ruling by a trial judge under s 97 of the Evidence Act, an appellate court is undertaking a limited review:

“What is to be reviewed in the appellate process isthe state of mind of the court about a future hypothesis based on logicalprocesses, including weighing of evidence in a framework of proven orassumed evidence. The appeal court is not reviewing the fact of the probativeeffect of the evidence; it is reviewing what the court thinks that will be. Thatinvolves an assessment as to whether the judge approached the question byreference to correct principles and whether it was open for him or her to drawthe (limited) evaluative conclusion that was drawn . . . In practice, there is likely to be little difference between this approach and the application of House v The King.”

32. I am not persuaded that the applicant has established any error in the trial judge’s decision to refuse his application for separate trials and for severance of the indictment. Her Honour correctly articulated the applicable statutory provisions and the principles outlined in the authorities to which reference was made in her Honour’s reasons. No error has been established in the trial judge’s rulings on the admissibility of evidence or the weighing of probative value against danger of unfair prejudice. No error has been shown in her Honour’s conclusion that the risk of unfair prejudice to the applicant could be sufficiently ameliorated by directions to the jury.

33. The Crown opposed the grant of leave and argued that the applicant has, in his submissions, merely repeated the arguments which had been put on his behalf before the trial judge, and has not attempted to identify any error of the House v King variety. There is much force in this submission. However, I understood Mr James ultimately to submit that it was not open to her Honour to find that the risk of prejudice to the accused could be ameliorated by directions. This submission raised a question which, had it been resolved favourably to the accused, would have resulted in the appeal being allowed. For this reason I am prepared to grant leave, although, for the reasons given above, the appeal ought be dismissed.

34. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

35. WILSON J: I agree with Adamson J.

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Decision last updated: 20 October 2020