Date of Order: 9 August 2018 Date of Publication of Reasons: 8 November 2018
S121/2018
ORDER
1. Appeal allowed.
2. Set aside the orders of the New South Wales Court of Criminal Appeal and, in lieu thereof, order:
(a)the appeal to that Court be allowed; and
(b)there be a new trial.
On appeal from the Supreme Court of New South Wales
Representation
S J Odgers SC with S J Buchen for the appellant (instructed by Proctor & Associates)
L A Babb SC with K N Shead SC and B K Baker for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
McPhillamy v The Queen
Evidence – Criminal trial – Sexual offences – Tendency evidence – Admissibility – Where appellant acolyte and complainant altar boy – Where appellant alleged to have followed complainant into church's public bathroom and committed offences – Where evidence that appellant, while working as an assistant housemaster, sexually offended against homesick boarding students who sought out appellant in private bedroom led as tendency evidence – Where tendency expressed as appellant having sexual interest in young teenage boys under his supervision and to act on that interest – Where tendency evidence of acts occurring ten years before offences charged – Where no evidence other than complainant's evidence that appellant had offended again in ten year period – Where tendency evidence unchallenged in cross-examination – Whether tendency evidence possessed significant probative value.
Words and phrases – "sexual interest", "significant probative value", "tendency evidence", "tendency expressed at a high level of generality", "tendency to act in a particular way", "tendency to have a particular state of mind".
KIEFEL CJ, BELL, KEANE AND NETTLE JJ. This appeal is concerned with the admissibility of the evidence of "B" and "C" of the appellant's acts of sexual misconduct with them, as tendency evidence, on his trial for sexual offences against "A". The admissibility of the evidence is governed by the provisions of Pt 3.6 of the Evidence Act 1995 (NSW). "B"'s and "C"'s evidence was unchallenged. The acts of which they complained occurred a decade before the alleged offending against "A", which offending was denied.
The Court of Criminal Appeal of the Supreme Court of New South Wales (Harrison and R A Hulme JJ; Meagher JA dissenting) was divided on the question of whether "B"'s and "C"'s evidence had significant probative value[1]. By grant of special leave, the appellant appealed to this Court[2]. On 9 August 2018, at the conclusion of oral argument, the Court made orders allowing the appeal, setting aside the orders of the Court of Criminal Appeal and in lieu thereof allowing the appeal to that Court and directing a…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
McPhillamy v The Queen [2018] HCA 52
Case
[2018] HCA 52
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from McPhillamy, who had been convicted of sexual offences against an altar boy, "A". The alleged offences occurred between November 1995 and March 1996 in the public toilets of a cathedral, where the appellant, an acolyte, supervised the complainant, an 11-year-old altar boy. The complainant's evidence detailed two separate occasions of sexual misconduct by the appellant. The appeal to the High Court followed a divided decision in the New South Wales Court of Criminal Appeal regarding the admissibility of certain tendency evidence.
The central legal issue before the High Court was whether evidence of the appellant's prior sexual misconduct, occurring approximately ten years before the charged offences, possessed sufficient probative value to be admitted as tendency evidence under section 97(1)(b) of the *Evidence Act*. This tendency evidence concerned allegations that the appellant, while working as an assistant housemaster, had sexually offended against boarding students who sought him out in private. The tendency was expressed as the appellant having a sexual interest in young teenage boys under his supervision and acting on that interest.
The High Court allowed the appeal, concluding that the tendency evidence did not possess significant probative value. The Court reasoned that the ten-year gap between the prior conduct and the charged offences, coupled with the absence of any other evidence of offending during that period, diminished the evidence's capacity to demonstrate a propensity on the part of the appellant to commit the charged offences. The Court found that the tendency, as expressed, was too general and lacked the necessary connection to the specific circumstances of the alleged crimes against "A" to outweigh its prejudicial effect.
Consequently, the High Court set aside the orders of the New South Wales Court of Criminal Appeal and, in lieu thereof, ordered that the appeal to that Court be allowed and that there be a new trial.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the New South Wales Court of Criminal Appeal and, in lieu thereof, order:
(a) the appeal to that Court be allowed; and
(b) there be a new trial.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The Court of Criminal Appeal of the Supreme Court of New South Wales (Harrison and R A Hulme JJ; Meagher JA dissenting) was divided on the question of whether "B"'s and "C"'s evidence had significant probative value[1]. By grant of special leave, the appellant appealed to this Court[2]. On 9 August 2018, at the conclusion of oral argument, the Court made orders allowing the appeal, setting aside the orders of the Court of Criminal Appeal and in lieu thereof allowing the appeal to that Court and directing a new trial. These are our reasons for joining in those orders.[1]Evidence Act, s 97(1)(b).[2][2018] HCATrans 073, 20 April 2018.Procedural history and evidence In February 2015, the appellant was tried in the District Court of New South Wales (Judge King SC and a jury) on an indictment that charged him in six counts with sexual offences against "A". The offences were alleged to have occurred on two separate occasions between 1 November 1995 and 31 March 1996 in the public toilets of the St Michael and St John's Cathedral, Bathurst. At the time, "A" was an 11-year-old altar boy under the supervision of the appellant, an acolyte. "A" gave evidence that on a Saturday night before mass, the appellant had followed him into the toilet and masturbated in front of him[3]. He had encouraged "A" to masturbate and he had briefly touched "A"'s penis as he demonstrated how to masturbate[4]. The appellant had ejaculated. After this, the appellant and "A" left the toilet and the service commenced. The remaining offences occurred a few weeks later. On a Saturday night before mass, the appellant again followed "A" into the toilet, where he masturbated in front of him[5], encouraged "A" to masturbate and commenced to manually stimulate "A"'s penis[6]. The appellant then said that he would show "A" "something even better" and he performed oral sex on "A". After this, the appellant required "A" to perform oral sex on him[7]. Shortly after commencing to do so, "A" began to gag and cry. The appellant comforted him and they left the toilet together. Later the appellant told "A" that he was "sorry that it had gone that far".[3]This conduct was charged as an aggravated act of indecency towards "A", a person under the age of 16 years, and under the appellant's authority: s 61O(1) of the Crimes Act 1900 (NSW).[4]This conduct was charged as an aggravated indecent assault, "A" being under the age of 16 years: s 61M(1) of the Crimes Act.[5]This conduct was charged as the commission of an aggravated act of indecency towards "A", a person under the age of 16 years, who was under the appellant's authority: s 61O(1) of the Crimes Act.[6]This conduct was charged as an aggravated indecent assault, "A" being under the age of 16 years: s 61M(1) of the Crimes Act.[7]This conduct was charged as two counts of aggravated sexual intercourse, "A" being above the age of 10 years and under the age of 16 years and under the appellant's authority: s 66C(2) of the Crimes Act. "A" did not report these assaults to anyone. He said that the appellant had told him that he, "A", was gay and that he needed to be careful because "everybody would turn against me". "A" made his first complaint about these assaults in April 2010 when he approached the Professional Standards Office of the Catholic Church seeking compensation. In a signed complaint, "A" falsely stated that the appellant had anally penetrated him on the second occasion. "A" later agreed to accept $30,000 from the Church by way of compensation. The Professional Standards Office forwarded "A"'s complaint to the police. In November 2012 "A" made a statement to the police. In that statement, "A" volunteered that his earlier allegation of anal penetration was false. At the trial, "A" agreed in cross-examination that he had been aware that the appellant had been charged with sexual offences against boys at the time he made his complaint to the Professional Standards Office.
Decision
Reasons for decision
KIEFEL CJ, BELL, KEANE AND NETTLE JJ
(dissent)
EDELMAN J