MLW v The Queen
[2018] NTCCA 19
•21 December 2018
CITATION:MLW v The Queen [2018] NTCCA 19
PARTIES:MLW
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:No. CA 15 of 2017 (21521727)
DELIVERED: 21 December 2018
HEARING DATES: 20 July and 23 October 2018
JUDGMENT OF: Southwood, Blokland and Barr JJ
CATCHWORDS:
EVIDENCE – Criminal trial – Sexual offences against child – Admissibility – Tendency evidence – Discreditable conduct of the accused directed to child complainant – Hearsay evidence – Evidence of adult’s sexual interest in a child and tendency to act on that interest – Whether adult’s sexual interest in a child simpliciter is tendency evidence – Additional purposes for which evidence may be admitted – Duty of prosecution to indicate the use which the jury is to make of the evidence – Significant probative value – Whether probative value substantially outweighed any prejudicial effect – Evidence properly admitted – Directions to jury about tendency evidence – Whether substantial miscarriage of justice arose – Evidence (National Uniform Legislation) Act (NT) s 66, s 95, s 97, s 101, s 137 – appeal allowed.
Criminal Code (NT) s 131A (2) and (5)
Evidence (National Uniform Legislation) Act (NT) s 59, s 66, s 95, s 97, s 101, s 135, s 137
Hughes v The Queen [2017] HCA 20; 92 ALJR 92; 344 ALR 187; R v Bauer (a pseudonym) [2018] HCA 40; 359 ALR 359, applied.
R v N.K.S. [2004] NSWCCA 144, distinguished.
Colquhoun v The Queen(No 1) [2013] NSWCCA 190; ES v The Queen(No 1) [2010] NSWCCA 197; R v AH (1997) 42 NSWLR 702; Ritchie (a pseudonym) v The Queen [2018] VSCA 31; WFS v The Queen [2011] VSCA 347; 33 VR 406, followed.
R v Leonard [2006] NSWCCA 267; 67 NSWLR 545; Quinn (a pseudonym) v The Queen [2018] VSCA 82, not followed.
DJV v The Queen [2008] NSWCCA 272; 200 A Crim R 206; Doney v The Queen [1990] HCA 51; 171 CLR 207; HML v The Queen [2008] HCA 16; 235 CLR 334; IMM v The Queen [2014] NTCCA 20; IMM v The Queen [2016] HCA 14; 257 CLR 300; KJR v The Queen [2007] NSWCCA 165; 173 A Crim R 226 Packard (a pseudonym) v The Queen [2018] VSCA 45; Qualtieri v The Queen [2006] NSWCCA 95; 171 A Crim R 463; R v Cakovski [2004] NSWCCA 280; 149 A Crim R 21; R v EF [2008] VSCA 213; 189 A Crim R 463; R v Li [2003] NSWCCA 407; R v OGD(No 2) [2000] NSWCCA 404; 50 NSWLR 433; R v McKenzie-McHarg [2008] VSCA 206; 189 A Crim R 291; R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329, referred to.
REPRESENTATION:
Counsel:
Appellant:J Tippet QC
Respondent: M Nathan SC
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Number of pages: 74
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINMLW v The Queen [2018] NTCCA 19
No. CA 15 of 2017 (21521727)
BETWEEN:
MLW
Appellant
AND:
THE QUEEN
Respondent
CORAM: SOUTHWOOD, BLOKLAND and BARR JJ
REASONS FOR JUDGMENT
(Delivered 21 December 2018)
THE COURT:
Introduction
The prosecution of the appellant has been unusually protracted. It has involved three trials by jury. The first trial commenced on 30 November 2015 and resulted in a hung jury. The second trial was before his Honour Grant CJ. It commenced on 12 July 2016 and terminated when the jury was discharged mid trial because a Crown witness became ill and was unable to give evidence. The third and last trial ran from 6 to 15 March 2017.
At the conclusion of the third trial the jury found the appellant guilty of two counts of maintaining a relationship of a sexual nature with a child under the age of 16 years contrary to s 131A(2) and (5) of the Criminal Code 1983 (NT). Each count involved a different child. The first of the counts (count 1) relates to CMW. The second of the counts (count 12) relates to CAW. The complainants are the appellant’s granddaughters. On 17 March 2017 the appellant was sentenced to a total of 12 years’ imprisonment with a non-parole period of eight years and five months.
The Crown case was that between 2006 and 2014 at Darwin, Palmerston and Adelaide, the appellant maintained an ongoing sexual relationship when in the company of the complainants while they were between four and 12 years of age. The appellant was between 58 and 65 years of age during the same period. The sexual misconduct involving the complainants included digital penetration, fellatio, cunnilingus and exposing CMW to pornographic films. The Crown’s evidence was comprised of the direct evidence of the complainants (part of their evidence about digital penetration was also said to be cross admissible as tendency evidence), complaint evidence, evidence of uncharged acts and evidence of the complainants’ mother, KJC, that in 2006 CMW told her that the appellant had said to her that, “Grandad said that Nana likes to drink the stuff that comes out of his penis” (“the child’s statement”).
The appellant has appealed against his convictions for counts 1 and 12, that is, against his convictions in respect of both complainants. Initially he sought to rely on the following grounds of appeal.
(1)The learned Chief Justice erred in ruling[1] that the tendency evidence[2] was admissible in so far as it was unreasonable to be satisfied that the risk of contamination, concoction or collusion could be excluded and in so doing misapplied the prima facie exclusionary rule requiring the prosecution to satisfy the Court that the evidence was admissible.
(2)The learned trial Judge (his Honour Mildren AJ) erred by not adequately and fully directing the jury with regard to the circumstances in which the child’s statement could be used adversely to show the nature of the relationship between the appellant and CMW and his sexual interest in her.
(3)The learned trial Judge failed to direct the jury as to the circumstances in which the evidence of distress could be used.
Grounds 1 and 3 clearly relate to the appellant’s convictions for both counts 1 and 12 on the indictment. It is difficult to see how ground 2 and ground 4 which is referred to at [6] below relate to the appellant’s conviction for count 12 and counsel for the appellant did not fully develop any submissions in this regard. However, Senior Crown counsel in his address to the jury in substance stated that the child’s statement supports the accounts of both complainants and this statement was given the trial Judge’s imprimatur in his summing up to the jury.
On 30 January 2018 under s 429 of the Criminal Code, a single Judge of the Court of Criminal Appeal granted the appellant leave to appeal on ground 2 but otherwise refused leave to appeal. In light of the High Court’s recent decision in R v Bauer (a pseudonym),[3] the appellant has abandoned his application for leave to appeal on proposed ground 1. In R v Bauer (a pseudonym), the High Court stated that subject to the risk of contamination, concoction or collusion being so great that it would not be open to the jury to accept the evidence, the risk of contamination, concoction or collusion goes only to the credibility and reliability of the evidence and therefore is an assessment that must be left to the jury. The appellant presses his application for leave to appeal on ground 3, and has sought to add the following ground of appeal:
(4)The trial Judge erred in law in allowing the conversation between the child CMW and KJC to be admitted into evidence.
The Crown does not object to the addition of the further ground of appeal. As it involves a question of law, leave is not otherwise required. The proposed further ground 4 and ground 2 are the main grounds of appeal.
The main issues
Counts 2 to 11 on the indictment contain the particulars of the occasions said to constitute the appellant’s maintenance of a relationship of a sexual nature with CMW (count 1). Counts 3, 6 to 9, and 11 on the indictment plead that the appellant had fellatio with CMW. Counts 4 and 5 on the indictment both plead that the appellant exposed CMW to pornographic films depicting young women engaging in fellatio.
A very important piece of evidence in the Crown case about the counts concerning CMW was KJC’s evidence about the child’s statement. The evidence is potentially very powerful evidence because the statement attributed to the appellant by CMW involves the appellant speaking about the sexual act which constitutes the majority of sexual offences said to have been committed by the appellant against CMW. The child’s statement reveals the appellant’s very particular sexual interest in CMW and him grooming her. The evidence was objected to by the defence at trial and forms the major part of this appeal.
The main issues in the appeal are:
(1)On what basis was the child’s statement admitted into evidence?
(2)What use did the Crown submit the jury should make of the child’s statement?
(3)Was the child’s statement tendency evidence? If so, was it admissible?
(4)If the child’s statement was tendency evidence and admissible, were his Honour the trial Judge’s directions to the jury about the evidence so deficient as to amount to a miscarriage of justice?
The child’s statement to her mother
The child’s statement was made in the following circumstances. CMW and her parents were then living with the appellant and his wife in a unit in Bayview, a suburb of Darwin. The unit was in a multi-storey building with an underground carpark. A lift provided access from the carpark to the unit. On the day in question CMW was helping the appellant take some groceries from the carpark to the unit. After they had taken some of the groceries to the unit and returned to the carpark, the appellant sent the remainder of the groceries and the child up to the unit in the lift, and left the building. The child’s statement was made by CMW to KJC just after the child came out of the lift with the last of the groceries. CMW has no memory whatsoever of the conversation with the appellant or the conversation with her mother and was unable to give any evidence about those conversations.
The evidence-in-chief of KJC at the trial was as follows.
She [CMW] had just been bringing up groceries. Because it was a multi-storey building there was a lift that went down to the carpark where [the appellant] and [his wife] had car parks allocated to them. That is where they would park and then obviously bringing up, like, grocery shopping, they’d bring it up in the lift. And so [CMW] had just come back from going up and down and helping her grandfather with the shopping.
There was no one else present. It was just after she came back up. She came and told me that grandad said that Nana likes to drink the stuff that comes out of his penis. She did not provide any other context about that statement or any other explanation [nor did KJC ask CMW about such matters].
I don’t remember saying anything because I suppose I was in shock, for her to be able to – well, to be able to repeat anything like that because it’s not something a five-year-old should know. I was in shock.
She [CMW] was five.
She [KJC] had not discussed anything with her daughter, CMW, similar to the comment that she had come out with, that type of sexual content.
[KJC] spoke to her sister about it possibly either that day or the day after. It was soon after it was said.
I believe that we did restrict, sort of, the time that the kids may have been left alone with him [the appellant]. And I believe that we may have moved to my sisters just to give distance.
The last two paragraphs of KJC’s evidence-in-chief were not admissible in evidence. They impermissibly bolster the evidence of KJC.
During cross examination, KJC gave the following evidence.
Defence counsel: Now I just wanted to move on to that other – the subject, when – you said that when [CMW] was five she came out with the statement and the statement was that grandad said that grandma likes to drink the stuff that comes out of his penis?
KJC: Yes.
Defence counsel: Now in your initial police statement you use the words, “She said something like that”. It is the “something like that” that I want to talk to you about. The – you have said well that is what you remember her saying?
KJC: Yes.
Defence counsel: You were shocked?
KJC: Yes.
Defence counsel: Did you think of pulling [the appellant] aside and saying, hey look, this just came out of [CAW’s] (sic) mouth, what is that about?
KJC: [CMW]
Defence counsel: [CMW’s] mouth, sorry. Thank you for correcting me. But yes, what is that about?
KJC:I didn’t feel comfortable approaching [the appellant] about something like that.
Defence counsel: Well your husband […], he is very close to his father?
KJC: Yes.
Defence counsel: But [your husband] wouldn’t you have thought that he would want to know something like that?
KJC: Possibly.
Defence counsel: Are you sure that they are the words that were used?
KJC: Pretty sure.
Defence counsel: So [the appellant] wasn’t there?
KJC: No.
Defence counsel: But this was at a time when – time he might have been getting some groceries?
KJC: Yes.
Defence counsel: And he is bringing them up from the car park up to the unit?
KJC: Yes.
Defence counsel: And [the appellant] had gone down to get some more and that’s when [CMW] said that?
KJC: He had actually left.
Defence counsel: Left?
KJC:Left to go somewhere else, so he wasn’t at the unit at all.
Defence counsel: Was there any discussion prior to [CMW] saying that, so that we can give some context to it?
KJC: No.
Defence counsel: Nothing at all?
KJC: Just came out of nowhere.
Defence counsel: But you never raised it with [the appellant] and you never raised it with [your husband]?
KJC: No.
Defence counsel: But you are sure that that’s what was said?
KJC: Yes.
It is of potential significance that KJC did not state in her evidence that CMW told her the appellant made the statement attributed to him directly to her while they were alone in the carpark or in the lift. It is also unknown whether CMW went shopping with the appellant or simply helped him bring the shopping up to the unit from the carpark. This raises the possibility that the statement could have been made by the appellant to another person in the presence of the child while they were shopping. However, this was not raised by the defence at the trial. The defence case at trial was that the complainants and their mother had colluded and concocted the whole of their evidence. This possibility was raised for the first time on page 8 of Mr Read SC’s affidavit made on 7 September 2017, and filed in support of the appellant’s application for leave to appeal.
In subparagraph (b) under the heading ‘Ground 2’ of his affidavit, Mr Read SC states:
The learned trial judge did not adequately direct that the jury had to be satisfied beyond reasonable doubt, firstly that the statement (or something very close to it) attributed to CMW was made, secondly that it was made at the time alleged, thirdly and importantly that it in fact was made to the child directly and not to another person [emphasis added].
As it was not part of the defence case at the trial that the appellant may have made the statement reported in the child’s statement to someone else, his Honour the trial Judge cannot be criticised for not raising such a possibility with the jury. Further, contrary to what Mr Read states in his affidavit, his Honour also instructed the jury that they needed to be satisfied beyond reasonable doubt that the appellant spoke the words reported in the child’s statement before they could rely on the statement.
The objection to and tender of the child’s statement
Before dealing with the objection to and tender of the child’s statement through the evidence of KJC, it is important to state that it was essential for the Crown to identify the purpose of the tender, or put another way, the use the Crown says the jury should make of the child’s statement at the outset of the proceeding. Crown counsel are under a duty to clearly articulate how the Crown says the jury should use such evidence.[4] If the evidence is to be relied on to infer an accused’s guilt, it will be helpful for Crown counsel to describe each step along the path (or paths) of reasoning which the jury may follow to infer the accused’s guilt from the evidence.[5] Identifying the purpose for which the evidence is to be used is necessary because it will determine which sections of the Evidence (National Uniform Legislation) Act 2011 (NT) apply to the admissibility of the evidence and the directions to be given to the jury by the trial judge.
If the use of evidence by the jury is to involve tendency reasoning then the evidence must be treated as tendency evidence.[6] Where the evidence is not admitted as tendency evidence then issues will arise as to whether the evidence is relevant, whether it should be rejected under s 135 or s 137 of the Evidence (National Uniform Legislation) Act, and what other use can be made of the evidence.
The duty of Crown counsel arises in the context of the prosecutor’s role to assist the Court and do justice between the community and the offender according to law and the dictates of fairness. A prosecutor has a special role that combines the role of an advocate contending for a cause in adversarial proceedings and that of a minister of justice. A prosecutor must fairly assist the Court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the Court, and must seek to assist the Court with adequate submissions of law to enable the law to be properly applied to the evidence and the facts.
At the trial the defence objected to the evidence of KJC about the child’s statement on the grounds that (1) it was second-hand hearsay and therefore did not fall within the exception to the hearsay rule provided by s 66 of the Evidence (National Uniform Legislation) Act, and (2) it was inadmissible under s 137 of the Evidence (National Uniform Legislation) Act as its probative value was outweighed by the danger of unfair prejudice to the appellant. The argument that the evidence was second-hand hearsay was based on counsel for the defence’s misinterpretation of s 62(2) of the Evidence (National Uniform Legislation) Act. The main basis on which it was said to be unfair was that it was hearsay evidence and the maker of the child’s statement, CMW, had no memory of her alleged conversations with the appellant and her mother.
The submission made by defence counsel that the evidence of KJC about the child’s statement was second-hand hearsay evidence was plainly wrong and should not have been made. The child’s statement was a direct account of what she had heard and observed. It was a direct account of the appellant’s conduct towards her while in her company. The appellant’s conduct was the asserted fact. If CMW was capable of giving evidence about her conversation with the appellant it would be direct evidence of his conduct. The evidence of KJC about the child’s statement was first-hand hearsay. It met the requirements of both s 62(2) and s 66 Evidence (National Uniform Legislation) Act and therefore was not excluded by s 59(1) of the Act. The submissions made by defence counsel diverted the trial Judge’s attention from the key issue, namely the use that the jury should make of the child’s statement.
In response to the defence’s objection to the tender of the child’s statement, the Crown submitted that the evidence was relevant because it established that the appellant had a sexual interest in engaging in fellatio with CMW and was grooming her so he could engage in sexual activity of that kind with her, and on the Crown case he ultimately did so. While the evidence of KJC was hearsay evidence, it was first-hand hearsay and admissible under s 66 of the Evidence (National Uniform Legislation) Act. Further, the Crown submitted the probative value of the evidence far outweighed any danger of unfair prejudice. The prejudice to the defence lay in its probative value and nothing else.
The use of the child’s statement suggested by the Crown involved tendency reasoning and therefore a tendency use of the evidence. However, such a use was denied by Senior Crown counsel. Consequently, it is necessary to carefully consider the Crown’s submissions at the trial about the admissibility of the child’s statement.
At the trial, Senior Crown counsel made the following submissions about the admissibility of the child’s statement.
Now, the Crown seeks to lead the evidence not for a hearsay purpose […]. Simply as evidence that that conversation had occurred, the conversation between [CMW] and the [appellant]. And that [CMW] had then told her mother.
[…]
The Crown suggests that a five year old child would not be in a position to either fabricate or […] come up with that statement, and the strong likelihood is that it was in fact said by the [appellant]. If that is accepted, […] the jury would be entitled to draw the [inference] that it is indicative of a sexual interest in the child.
[…]
Because it goes to the issue of sexual interest and grooming the child for future conduct[, we] say it is open for that inference to be drawn. And, your Honour, if you draw an analogy […] Your Honour has heard the evidence from [CMW] in relation to the watching of pornographic videos. Now, there were statements made by the [appellant] while watching [those videos] which the Crown seeks to rely on as grooming. That is, the young girl or the young woman involved in performing fellatio upon the other male in the video “likes what she is doing, and you could do that too”. […]
Now when – if [CMW] gives that evidence, as she has, that is direct evidence of an attempt at grooming by the [appellant]. It is not first-hand hearsay because it is not being led [for] the truth of the assertions by the [appellant… It] was not sought to be admitted under s 66 as hearsay evidence where the Crown seeks to rely on the truth of that, namely that the young girl or the young woman involved in the video actually likes what she was doing. Because [that] is irrelevant for the purposes for which the Crown seeks to use it. It is the fact that [the words] were said by the [appellant] in an attempt to groom or sexualise his granddaughter [on which the Crown relies].
[...]
It was conduct, absolutely. Not a representation. And, your Honour, [the child’s statement] is [also] conduct, as your Honour has indicated.
[…]
So your Honour, if the conduct is the conversation itself, then the Crown is not seeking to lead [the child’s statement] for a hearsay purpose, [namely] the truth of that conduct[. M]erely the fact that the conduct [occurred] shows a state of mind [of the appellant…] If the jury accept that the conduct occurred then they are entitled, in the Crown’s submission, to draw the inference that the [appellant] was grooming the complainant for future sexual misconduct..
In essence, the Crown submitted that if the jury accepted the appellant spoke the words reported in the child’s statement, the evidence of sexual interest and grooming in that statement taken together with CMW’s evidence about counts 4 and 5 demonstrated the appellant had a sexual interest in engaging in fellatio with CMW and a tendency to act upon it and that tendency could be used to infer the guilt of the appellant. Where a person has a particular sexual attraction in a child and has engaged in grooming the child on a number of occasions it is more likely that the person will continue to seek to fulfil the sexual attraction by committing the charged acts. In other words, the Crown’s submission at [25] above is a statement to the effect that the evidence was to be used by the jury for a tendency purpose to infer guilt. The evidence made it more probable that the appellant committed the offences charged on the indictment because it is likely that the appellant behaved in accordance with his demonstrable desire to have fellatio with CMW.
However, when asked directly by his Honour the trial Judge if the evidence was tendency evidence, Senior Crown counsel said:
Your Honour, it is not because it comes from the complainant herself. And in the recent decision of IMM v The Queen, the High Court authority which resolved an issue of competing New South Wales and Victorian Courts of Criminal Appeal [decisions], the majority in that case held that tendency evidence must come from a person outside the complainant.
So the Crown is not seeking to use it as tendency but if that conduct is accepted in the circumstances of again a statement from the five year old girl to her mother, and [KJC] gives that evidence then the jury are entitled to rely on the first-hand evidence of [KJC] under s 66 so long as it was fresh in the mind of the maker and that person is available to be or has given evidence then the jury are entitled to rely on [KJC’s] evidence of the conduct as evidence going to its truth that the conduct occurred. That is the basis of the exception under s 66 [of the Evidence (National Uniform Legislation) Act].
The response of Senior Crown counsel to his Honour the trial Judge is incomprehensible. Having told his Honour, in substance, that the jury’s use of the child’s statement involved tendency reasoning, Senior Crown counsel then denied that it was tendency evidence. He did so based on a misapplication, or misunderstanding, of the High Court’s decision in IMM v The Queen[7] and of the application of s 66 of the Evidence (National Uniform Legislation) Act to tendency evidence. Having done that, Senior Crown counsel then said nothing further prior to the tender of the evidence about the use that the jury should make of the evidence if it could not be used for a tendency purpose. For example, he did not say whether it was to be used as context, background, or relationship evidence. Ultimately, he seems to have proceeded on the basis that the child’s statement was background evidence about the appellant’s ongoing intention (state of mind) and part of his plan to engage in fellatio with CMW and could be used by the jury as circumstantial evidence going to guilt in a similar manner to tendency evidence. Such an approach must have made the trial Judge’s task of formulating instructions to the jury about the child’s statement very difficult.
It is true that KJC’s evidence about the child’s statement is relevant to a fact in issue, may be used as if it was the evidence of CMW, was not excluded by the hearsay rule, and these factors are necessary factors for its admissibility. However, they may not be sufficient factors. Evidence is not simply admissible because it proves the relationship between a complainant and an accused. Various exclusionary rules may apply. Therefore, if the evidence was not tendency evidence, it was necessary for Senior Crown counsel to state precisely the use the jury was to make of the child’s statement and to describe each step along the path or paths of reasoning which the jury may follow to infer the accused’s guilt from the evidence.
Senior Crown counsel’s submission to the trial Judge that the majority of the High Court in IMM v The Queen held that tendency evidence must come from a person outside the complainant is wrong. All of the members of the High Court in IMM v The Queen treated the relevant evidence of sexual interest in the child in that case as if it involved tendency reasoning and was to be used for a tendency purpose. However, they found that the evidence did not have significant probative value and was therefore inadmissible. Its probative value was considered to be so low there was a real issue as to whether it was even relevant.
The plurality of the High Court in IMM v The Queen stated:[8]
The complainant gave evidence of an occasion which occurred shortly before the appellant and the complainant’s grandmother separated. There is no suggestion that there was anything untoward about the activity being undertaken at the time. The complainant and a granddaughter of the appellant were giving the appellant a back massage, as he had requested. The appellant was lying face down on a bed. The complainant was standing next to the bed. The complainant said that the appellant “ran his hand up my leg”. She was wearing shorts at the time, so his hand did not contact her skin. She said that she moved away.
It may be accepted for present purposes that the evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant, as the trial Judge ruled. This is not put in issue by the appellant. But s 97(1)(b) requires more. It requires that the evidence have significant probative value
In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant’s account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant’s unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant’s account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant’s evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.
Evidence from a complainant adduced to show an accused’s sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant’s account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X’s account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her.
For these reasons the tendency evidence given by the complainant did not qualify as having significant probative value and was not admissible under s 97(1)(b).
All that IMM v The Queen decided of relevance to this case was that the sole uncharged act in that case, which was relatively remote in time and of a significantly different order of gravity from the charged acts, was not significantly probative and was therefore inadmissible. The High Court did not decide that the evidence of complainants about uncharged acts was not tendency evidence. The plurality of the Court specifically stated that it is possible that there may be some special features of the complainant’s account of an uncharged incident which give it significant probative value.[9] This aspect of that decision is not unclear. The child’s statement is of that calibre and at the trial the Crown repeatedly emphasized the significant probative value of the statement. In any event, in R v Bauer(a pseudonym)[10] the High Court has now stated that a complainant’s evidence of an accused’s uncharged acts in relation to him or her may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.
In the context of the Crown’s submissions about s 137 of the Evidence (National Uniform Legislation) Act, Senior Crown counsel made the following further submissions at trial.
Now, in the current case your Honour, as your Honour would have heard both in my opening but also in the evidence of [CMW], significant parts of her evidence alleges conduct directed towards making the complainant perform fellatio and in particular either ejaculation into the mouth of the complainant or her swallowing that ejaculate. So both.
There are certainly three separate counts which relate directly to that allegation. I think it is counts 6, 7 and perhaps I’ll take your Honour specifically to it 6, 7 and 8. You then also have counts 4 and 5 which deal with the exposure to the pornographic video but, again, the focus of those videos, according to the complainant, was the performance of fellatio and the ejaculation into the mouth of one of the participants in the video.
So that occurs – so really counts 4, 5, 6, 7 and 8, a significant proportion of the offences involving [CMW], relate to that focus on fellatio. Her statement then, if the jury accept the conduct of the [appellant] in making that statement has very significant, insofar as the Crown would submit, crucial impact in relation to an assessment of the likelihood of the offences occurring because it is exactly consistent with a desire to normalise fellatio and the ejaculation in the mouth of the, in this case, of the granddaughter.
In terms of the prejudice, in the Crown submission the only prejudice that arises out of this is inexplicably (sic) linked with its probative value. The reason why it is shocking, distasteful, repugnant to a person is because it is entirely inconsistent with the nature of an ordinary, I use that term somewhat guardedly, ordinary relationship between a grandfather and a granddaughter.
And the reason why it is so repugnant is because it shows a clear sexual interest in that child and that is the very purpose for which the Crown seeks to use that evidence. So its prejudicial value is no more than its probative value and the reason why it is so shocking is again, you are talking about a statement made by a five-year-old girl. [emphasis added]
The above submissions of Senior Crown counsel once again involve tendency reasoning and suggest the jury may use the child’s statement for a tendency purpose.
The trial Judge’s ruling about the admissibility of the child’s statement
His Honour the trial Judge ruled that the hearsay rule did not apply to the mother’s evidence about the child’s statement and there was no unfair prejudice to the appellant in admitting it.
In his Reasons for Ruling, his Honour stated the following.
[...] The Crown intends to lead this evidence [of the child’s statement], not as tendency evidence, but to show that the [appellant] had a sexual interest in [CMW], and was grooming the child for future sexual misconduct which will be borne out by the evidence from [CMW] that, at a later time, the [appellant] showed the child pornographic movies of adult females performing fellatio and swallowing male sperm, and that he also got the child to do the same things to him.
[…]
Mr Nathan submitted that the purpose of the evidence was not to prove the truth of the fact asserted, but to prove that is what the [appellant] said, as evidence that the [appellant] was intending to groom the child by normalising fellatio. I accept Mr Nathan’s submissions. The evidence if given by [CMW], is not caught by s 59(1) because it is not being led to prove an asserted fact, but to prove the conduct on the part of the [appellant]. [emphasis added].[11]
There is a fundamental contradiction in the Crown’s intended use of the evidence as summarised by his Honour the trial Judge. However, in circumstances where the defence did not contest the Crown’s assertion that the child’s statement was not tendency evidence, his Honour seems to have made no independent assessment as to whether the use of the child’s statement identified by the Crown involved tendency reasoning or not. His Honour took the Crown at its word and ruled on the objections made by the defence only.
The Crown address
During the Crown’s closing address to the jury, Senior Crown counsel made the following remarks about the child’s statement.
The other significant factor in this case – and I opened on it, significantly, is the comment that [CMW] made to [KJC] when she was five. Again, I will spend some significant time talking about that and logically working it through.
But, ultimately the Crown will suggest to you that if you accept that the [appellant] made that comment to [CMW] then there is no explanation consistent with his innocence. Which is another way of saying, the only rational explanation is the guilt of the [appellant]. But I will take you through that again with – to some, well, significant extent.
[…]
The second piece of conduct on that same occasion is count 3 and that is the allegation of fellatio. She talked about him placing his penis in her mouth. He had his pants off, he had his hand on the back of her head, pushing her head back-and-forth so his penis would go further into her mouth.
[…]
And remember, this first count of fellatio is the first occasion where the [appellant] is acting out his ongoing intent. The consistency that I spoke about in my opening and that ties in so crucially to the statement that he makes to [CMW] when she was five. So that is count 3.
[…]
Count 4 is the first of the two counts that relate to pornography. Again, it is a consistent – it is a continuation and it being the whole purpose, I would suggest to you ladies and gentlemen, of counts 4 and 5 – the two times that he showed the videos to the complainant [is in order] to normalise the acts of fellatio and in particular of the ejaculation into the mouth of a girl.
[…]
So in those circumstances it was a young girl, about 16 or 17 performing fellatio, and he has basically said, “Well she likes doing that” -insinuating that you [CMW] can too.
[…]
Count 5 is the same – this time sitting on the lap and there is actually touching that occurs on that count as well but there’s the showing of the pornography and again, the same focus on fellatio and ejaculation into the mouth that continues this theme of sexualisation of the complainant in a very discreet way. And the allegation was that this was again the same room in the same house and a few weeks later. So that is counts 4 and 5.
[…]
Now we then move on to counts 6, 7 and 8, and they are the three particularised counts of fellatio that involve ejaculation.
So this time she spoke about – this is the one where the [appellant] used the handkerchief to ejaculate into. And there is reference to teaching her. Yes, it is their secret but it is something that he is helping her [with], he is teaching her in relation to this type of conduct. So, “[he] put his penis in my mouth and he had his hand on the back of my head and he pushed me towards his penis, back and forth, and then the white stuff came out again and it went onto his handkerchief he had in his pocket.”
Again, an interesting detail where you are talking about a plan, an intent, on the part of the [appellant] to slowly sexualise the complainant and increase the seriousness of the offending in the sense of his end goal - ejaculating into the mouth of his granddaughter and having her swallow the semen.
[...]
Now, count 8 is the first time that she recalls swallowing the ejaculate. And again, tying those offences back to what was said by [CMW] to her mother when she was five. Think about the intent behind these types of offending. The focus. His desire. And then think about the expression of that desire in his statement to [CMW] when she was young.
[…]
Okay. Let’s go, then, working backwards, that’s the starting point [the child’s statement]. [It is] the evidence of [KJC], both in evidence in chief and cross examination.
If you then accept, which in the Crown submission there is no reason for you not to, but if you accept the evidence of [KJC] about that, then what does that mean? Okay, well it means that [CMW], when she was five, said these things to her. Now that is not the end of the story. I mean there might be a suggestion that [CMW] could have made that up herself. Really? Common experience, common wisdom, common sense. A five-year-old girl out of the blue, you’re alone with the [appellant], you come back and then what? “Grandad said Nana likes to drink the stuff that comes out of his penis”.
It’s ridiculous. In terms of your experience of children, particularly five-year-old children, in what world does that make sense? Not the one we are living in. For it to be false, for the complainant CMW to have come up with that herself, and that the [appellant] just completely unknowingly, blithely going on without ever having said it. That makes no sense. So that’s the second step.
It is the third step, then, that becomes crucial to this case. If the [appellant] then said those words to his own granddaughter, what possible explanation is there – and it is a rhetorical question – is there to explain the reasoning behind it? Joke? No. The only, the only thing that makes sense, the only rational explanation for that statement is an inappropriate sexual interest in your granddaughter and an attempt to sexualise her specifically in relation to fellatio and the consumption of semen.
I mean, what were the chances, ladies and gentlemen, that five-year-old [CMW] comes up with this completely false story[,] an out of nowhere statement about the preference of the [appellant], and then years later makes an allegation […] that bears all of that out[?]
Again, what has a ring of truth? What makes sense to you? Now, ladies and gentlemen, I suggest that the only thing that adds up, the only thing that makes sense, is that the [appellant] had that sexual interest. And I said earlier in my closing address, if you get to that stage, there is no explanation that is consistent with his innocence. It only points to his guilt in relation to these offences and it significantly and crucially corroborates the accounts of not just [CMW], not just [CMW], because remember you have the tendency, you can use the tendency evidence, but it also extends to inappropriate sexual interest in his granddaughters. Supports [CMW’s] account, and then through tendency it supports [CAW’s].
In summary, Senior Crown counsel made the following points in his address to the jury. The only rational explanation for the appellant’s words, which are reported in the child’s statement, and his conduct in speaking to CMW about such matters, is the guilt of the appellant. The incident of fellatio which constitutes count 3 is the first occasion where the appellant is acting out his ongoing intention and that ties in so crucially to the child’s statement. The focus on fellatio in counts 4 and 5 continues this theme of the sexualisation of CMW in a very particular way. There was a plan and an intention on the part of the appellant to sexualise the complainant and increase the seriousness of his offending towards his end goal – ejaculating into the mouth of his granddaughter and having her swallow the semen. Count 8 was the first time CMW recalls swallowing the appellant’s ejaculate and those offences are tied back to what was reported in the child’s statement. The jury should think about the appellant’s intention behind these offences, the focus, and his desire and then think about the expression of that desire in the child’s statement. If the jury found the appellant spoke the words in the child’s statement then the only rational explanation for that statement is an inappropriate sexual interest in CMW and an attempt to sexualise her specifically in relation to fellatio and the consumption of semen. The only thing that makes sense is that the appellant had that sexual interest in his granddaughter, and if the jury got to that stage there is no explanation that is consistent with innocence, it only points to guilt in relation to the charged offences. According to Senior Crown counsel, the child’s statement significantly and crucially corroborated the account of not just CMW but in turn CAW.
While Senior Crown counsel told the jury there were a number of uses they could make of the child’s statement, it is apparent that he told them the main use they could make of the evidence was a tendency use of the evidence, namely they could infer the appellant’s guilt from his particular sexual interest in CMW and his tendency to act on his sexual interest in her. While the child’s statement is circumstantial evidence, it is circumstantial evidence of a particular kind and the inference being urged on the jury by the Crown involved tendency reasoning.
The jury were also told that the child’s statement could be used for the following purposes. First, as evidence of a step in a plan to groom CMW to enable the appellant to engage in such an act of sexual intercourse with her. Second, as evidence of a prior contemporaneous statement which supported the credibility of CMW and rebutted contamination, concoction and collusion. Third, as corroboration of CMW’s evidence about the charged acts; and fourth (as a result of the cross admissibility of the complainants’ evidence) as evidence of sexual interest in both his granddaughters.
Senior Crown counsel was wrong to tell the jury that KJC’s evidence about the child’s statement could be used as corroboration. Corroborative evidence is evidence which independently supports the evidence of a particular witness. Save in one particular limited respected which is discussed at [47] below, the evidence of KJC is not independent of CMW. Her evidence consists of a report of what CMW told her outside of the courtroom. It is received by the Court because it falls within an exception to the hearsay rule. The evidence remains first-hand hearsay evidence. Even though s 66 of the Evidence (National Uniform Legislation) Act permits the evidence to be used to prove what the appellant said to CMW, it never loses its hearsay quality. Section 66 of the Act simply permits the child’s oral out of court statement about the appellant’s conduct towards her to be tendered through another person, her mother. Senior Crown counsel’s reliance on the decision of the New South Wales Court of Criminal Appeal in R v N.K.S.[12] in support of the submission that the evidence of KJC was corroborative of CMW’s evidence is also plainly wrong.
The essence of corroborative evidence is that it “confirms”, “supports” or “strengthens” other evidence in the sense that it renders that other evidence “more probable”. It must do that by independently connecting or tending to connect the accused with the crime charged in the sense that it shows or tends to establish the accused committed the crime, not merely that a crime was committed but that it was committed by the accused. Evidence that an accused has a sexual interest in a child and a tendency to act on it, which is independent of the complainant, does that through tendency reasoning.
The trial Judge’s directions to the jury
During his summing up to the jury, his Honour the trial Judge gave the jury the following directions about the child’s statement.
The evidence of the uncharged acts is also relevant to the question of credibility of the two children as witnesses.
Now, I want to talk about the statement made by [CMW] to [KJC] when [CMW] was about five years old. This would have been in around 2006/2007, and they were living in the unit at Bayview.
[His Honour then set out the evidence-in-chief and evidence in cross-examination of KJC.]
So that is the evidence. The purpose of this evidence, if you accept it, is to show that the [appellant] had a sexual interest in the child and was sexualising or grooming the child. It is evidence which, if you accept it, is relevant to whether or not you accept the evidence of [CMW] that the misconduct alleged [against] the [appellant] actually took place.
In deciding whether or not to accept it, it is relevant that the allegation was made to [KJC] just after [CMW] had returned from a shopping trip with the [appellant]. The inference being that it might have been said by him only shortly before [CMW] mentioned it to her mother.
However, [CMW] herself does not give any evidence of it, and so the only evidence that it occurred at all is the hearsay account given by [KJC] who was not present when the alleged conversation took place between [CMW] and the [appellant].
Now, the first thing to notice about this is, it is not being suggested by anybody that in fact the [appellant’s] wife does like doing what [CMW] is said to have repeated. That is not the purpose of the evidence. It is not to prove that [CMW’s grandmother] likes to do this at all. The purpose of it is the very fact that is said by a child. That is the purpose of it.
Can I remind you that in the cross examination it was not suggested that [KJC] was lying, or reconstructing her evidence about what [CMW] told her, and you may well think, it is a matter for you, that this was such a surprising thing for a child of that age to say, that [KJC] is hardly likely to have forgotten it.
On the other hand, she is now recounting something that happened perhaps 10 years ago and it would be understandable if the precise words used might have been something a little different. The other thing is that there is no context to the words, and you might think that that is important.
There are some dangers in relying on this evidence, [as] there is no context, so we do not know if it was said in the car coming back from shopping, or in the lift, or in the car park, or where it was said to have happened.
We do not know what was said or done to prompt the [appellant] to have made this kind of remark, if that is what he did. No one sought to ask the [appellant] about it to verify, so we only have a hearsay account of it.
On the other hand, you might think it is unlikely that a child of five would be aware of such things, so as to have made the statement up. That is a matter for you. However, I warn you that before giving this any weight, you must be satisfied beyond reasonable doubt not only that it was said by [CMW], and that [KJC] has accurately recalled what she was told by [CMW], [but of] whether the [appellant] in fact said that to [CMW].
Later in his summing up to the jury, when dealing with the Crown case, his Honour the trial Judge made the following remarks.
[Senior Crown counsel] then took you through each count separately, which I am not going to do, but what I am going to do is to remind you of how he put his case, and it was this, that what he was suggesting was that the accused started by sexualising the complainant with the discussion that took place when she was 4 or 5, in the lift, you know what I mean when I’m talking about that. Then move from there, bit by bit, adding more and more.
[…]
He reminded you of the evidence from [CMW] in relation to count 5 when he was showing the second pornographic movie […]
So what the Crown prosecutor was putting to you is that he was slowly sexualising the complainant. He was reminding you of the expression that he was teaching her, how – fellatio, moved from using a handkerchief then coming in [CMW’s] mouth and she spat it out. And then swallowing the ejaculate. And finally, the fellatio in the vehicle.
[…]
In relation to the comment from [CMW] […]-this is the comment about what happened that day just after [CMW] had gone shopping with her grandfather, when she was four or five, or six years of age, and whatever it is.
And he put it to you that it was such a matter that the mother had a clear recollection of it, she was not likely to forget it. And he reminded you that in cross-examination it was never suggested that this was a fabrication or that she was lying or anything of that kind. It was not even suggested that she was mistaken.
And he put it to you that if you accepted this evidence it means that [CMW] had said this to her mother. It was unlikely that [CMW] would have made it up. If the accused said those words to his granddaughter, what possible explanation is there other than it is evidence of an inappropriate sexual interest and the purpose of it was to sexualise the child in relation to fellatio and the swallowing of semen. And all of that was borne out by the subsequent course of events. It supports the accounts of both granddaughters.
So that was effectively the Crown case. The Crown is asking you to believe the accounts that are given by both girls as reliable, to believe the mother’s evidence. The Crown is asking you to infer that there was no cross-contamination of any significance.
Later in his Honour’s summing up, when dealing with the defence case, he stated the following.
[Counsel for the defence has] also put to you that there was no independent supporting evidence of their complaints. By that, I take it that he means that there are certainly no eyewitnesses who saw anything. You may regard the mother’s evidence as to the alleged comment about “grandma liking to swallow the milk from his penis” as supporting evidence – and that would be independent of the girls – but that is a matter for you.
His Honour erred in instructing the jury that they may find the mother’s evidence about the child’s statement was evidence that independently supported the complainants’ evidence and thereby effectively giving his imprimatur to Senior Crown counsel’s statement that the child’s statement corroborated the evidence of CMW and supported the evidence of CAW. The mother’s evidence about the child’s statement does not support the evidence of CAW; and it is only in one very limited respect that the mother’s evidence about the child’s statement independently supports the evidence of CMW. If it is accepted by the jury, the mother’s statement independently supports the fact that CMW made a prior consistent statement that may be used to rebut the suggestion that CMW concocted her evidence. The mother’s evidence about the child’s statement does not otherwise independently support the CMW’s evidence. It is a report of part of CMW’s evidence and this should have been made clear to the jury by his Honour.
In our opinion, his Honour’s directions to the jury about the child’s statement are unclear and incomplete. This is not surprising given the level of assistance he received from both counsel who appeared at the trial. His Honour starts by instructing the jury, in substance, that the child’s statement is tendency evidence – “the purpose of the evidence, if you accept it, is to show the [appellant] had a sexual interest in the child and was sexualising or grooming the child”. His Honour then instructed the jury that “it is evidence which, if you accept it, is relevant to whether or not you accept the evidence of [CMW] that the misconduct alleged [against] the [appellant] actually took place”. This latter instruction arguably limits the jury’s use of the evidence to a credit or plausibility use of the evidence. His Honour seems to have instructed the jury that, if they accept the child’s statement, it makes CMW’s evidence about the counts on the indictment more capable of belief. If this assessment of the instruction is correct, his Honour thereby confined the use of the child’s statement to a context or relationship use which did not go directly to proof of the commission of the counts charged on the indictment. However, his Honour then went on when dealing with the Crown case to give his imprimatur to the Crown’s use of the child’s statement as tendency evidence.
As the child’s statement was not admitted as tendency evidence, his Honour should have expressly instructed the jury in accordance with s 95 of the Evidence (National Uniform Legislation) Act that the child’s statement cannot be used for a tendency purpose, and he should not have given the Crown’s use of the child’s statement his imprimatur, unless his Honour was satisfied that the evidence met the requirements of s 97(1) and s 101(2) of the Evidence (National Uniform Legislation) Act. As is discussed at [82] – [84] below when evidence of discreditable sexual conduct is not admitted as tendency evidence, as occurred in this case, then the jury should be specifically instructed by the trial Judge that the evidence cannot be used for a tendency purpose.[13] His Honour should have also stepped the jury through how the child’s statement may be used to support the evidence of CMW about the counts on the indictment. For example, he does not say that the child’s statement constitutes part of the essential background against which CMW’s evidence about the counts on the indictment fell to be evaluated, or that the evidence places the charged acts in their true context because the child’s statement is part of the evidence that reveals the appellant’s modus operandi, or that the child’s statement demonstrates CMW has behaved in a consistent manner over a 10 year period and therefore the jury may find her evidence more credible, or that the child’s statement rebuts the defence case of contamination, concoction and collusion.
The Crown’s submission on appeal
The Crown’s final assessment of the status and use of the child’s statement is set out in the Respondent’s Further Summary of Submissions dated 3 September 2018. Before considering those submissions it is useful to note the following matters. Section 66 of the Evidence (National Uniform Legislation) Act provides that in the circumstances referred to in that section the hearsay rule does not apply so as to exclude the evidence. The section does not state that other exclusionary rules contained in the Act do not apply to the hearsay evidence and consideration must be given to them. The case of R v N.K.S.[14] which Senior Crown counsel relied on in his submissions to this Court is a very different case to this case. That case involved direct express admissions made by an accused to a psychologist (i.e. someone who was not the complainant) that he had a sexual interest in his daughter and they had engaged in sexual intercourse, albeit not the sexual acts which were charged on the indictment in that case. The accused’s statements to the psychologist amounted to detailed admissions of the sexual nature of the relationship between the accused and his daughter. The evidence of the psychologist provided a clear context or background in which the complainant’s evidence could be evaluated. The evidence was independent of the evidence of the complainant and it was not hearsay evidence. The issue was whether the trial Judge in that case had wrongly excluded the evidence under s 137 of the Evidence Act 1995 (NSW). The trial Judge had excluded the evidence on the basis that the jury may misuse the evidence as an admission of the offences charged on the indictment. The Court of Criminal Appeal in New South Wales was required to consider the appeal expeditiously as an appeal under s 5F of the Criminal Appeal Act 1912 (NSW), which permits appeals from evidentiary rulings during the course of a trial. The leading judgment was delivered by Grove J, with whom Howie and Newman JJ agreed.
In his reasons for decision, his Honour Grove J stated that the evidence was not tendency evidence.[15] He gave no reason for doing so but presumably this was because the evidence comprised direct evidence of the accused’s admitted sexual interest in the complainant and the evidence was to be used to corroborate her evidence and refute the accused’s contention that he had not engaged in any sexual congress with the complainant whatsoever, not for a tendency purpose. His Honour stated that:
The evidence proposed to be adduced from Miss Anglais is plainly admissible. It is probative of the nature of the relationship between the complainant and the respondent in terms of the conduct in which he engaged and his expressed feelings. Certainly the evidence does not purport to constitute admission of guilt of any of the specific counts in the indictment. The evidence is not tendered on that basis. It is tendered to corroborate the testimony of the complainant.
The evidence of the complainant did not encompass an act or acts of mutual masturbation but corroborative evidence need not mirror the detail of evidence to be corroborated. The essence of such evidence is well settled by authority e.g. Doney v The Queen.[16] […]
Senior counsel confirmed that it was the respondent’s case that no form of sexual congress ever took place between his client and the complainant.
The Crown case includes sufficient evidence to go to the jury, absent the testimony of Miss Anglais. As stated, the latter is corroborative evidence, that is, evidence to support, confirm or strengthen other evidence that the respondent committed the offences charged. […][17]
The evidence of the admissions made by the accused to the psychologist in R v N.K.S. was to be used as relationship evidence which independently supported the evidence of the complainant and rebutted the accused’s contention that there had never been any sexual congress between them.
In contradistinction to the above are Senior Crown counsel’s written submissions dated 3 September 2018 which are set out below. For ease of expression, we have underlined the errors we find in the written submissions. It is to be noted that once again Senior Crown counsel maintained that the evidence was not tendency evidence despite describing in detail how the child’s statement may be used for a tendency purpose and how its use involved tendency reasoning.
Respondent’s Further Summary of Submissions dated 3 September 2018
It is then necessary to confine what the effect of that evidence from KJC actually is.
The evidence was led from KJC pursuant to s 66 of the Evidence (National Uniform Legislation) Act as a previous representation made by CMW to her, led to assert the truth of its contents, specifically that the appellant said during a conversation with CMW when she was five years old, that her grandmother likes to drink the stuff that comes out of his penis. Once the threshold criteria set out in s 66(2) are met, as they were in this case, and the jury are satisfied of it beyond reasonable doubt, then they are entitled to act on the asserted fact contained in the previous representation. In order to assess the weight of the evidence, the jury are entitled to take into account the contextual evidence surrounding the circumstances of the representation [or lack of it].
The fact that s 66 dramatically changed the previous common law position is now settled. A previous representation by a complainant to another and the asserted fact contained therein, which formerly included “complaint evidence” can now be used as direct evidence supporting the complainant’s account of [the] particularised offending charged on an indictment. The previous concerns about hearsay evidence and its unreliability and misuse were considered by the Australian Law Reform Commission and addressed by requiring that where the maker is to be called, as occurred in the instant case, then the conduct represented must be fresh in the memory at the time of the representation.
There is no suggestion in the instant case that the conversation with the appellant was not fresh in the memory of the complainant at the time she told her mother. Indeed, the references to any uncertainty surrounding the context of the conversation, namely precisely where and when it occurred were matters exclusively for the jury when assessing the weight to be attached to the evidence if accepted. Nor was it ever suggested to the jury that the complainant made up the content of the conversation with the appellant.
If the jury were to be satisfied beyond a reasonable doubt of the evidence of KJC on this point, then they were entitled to act upon it and find that the appellant made the relevant comment to his five-year-old granddaughter. Indeed, the learned trial [J]udge also warned the jury that they would have to be satisfied beyond reasonable doubt of not only what was said by CMW to her mother, but also whether it was in fact said by the [appellant] in the first instance. At this point the concerns surrounding the potential reliability of this evidence were also pointed out by the court.
The Crown led the evidence as conduct by the [appellant] supporting an inference the [appellant] had an unnatural sexual interest in CMW, the complainant in counts 1 – 11[,] and had engaged in sexualised grooming behaviour with the intent of facilitating acts of fellatio. However, importantly, it was not evidence of uncharged acts of prior sexual offending led to show a tendency on the part of the appellant to commit the particularised offences on the indictment.
[…]
The fact that the evidence in R v N.K.S. did not involve a representation from the complainant is immaterial due to the effect of s 66. As stated above, the asserted fact contained in the representation by CMW is that the appellant, the complainant’s grandfather, engaged in a conversation with the complainant of a clearly sexual and specific nature, when she was five years of age (the conduct). Once this is accepted to the requisite standard the jury are entitled assess to what extent, that conduct, like the conduct of the accused in N.K.S., supports the account of the complainant in regard to the charged conduct on the indictment.
The concerns raised by IMM v R in respect of evidence of uncharged acts admitted as tendency evidence did not arise in the current matter, due to the relevant evidence being admitted pursuant to s 66 of the Evidence (National Uniform Legislation) Act. Yet even so, given the unlikelihood of a five-year-old child understanding the meaning of the comment, let alone coming up with it herself, there may well be a strong argument that this occasion is one where the “special features of a complainant’s account” may well have provided the requisite significant probative value.
In relation to an assessment of the probative value of the evidence, particularly when comparing it to the prejudicial value pursuant to s 137 of the Evidence (National Uniform Legislation) Act, it is crucial that the specific nature of both the statement by the appellant and the alleged conduct by CMW (sic) is considered. The statement by the appellant provides a powerful inference that the appellant was attempting to groom the complainant for future sexual conduct of a particular type, seeking to normalise fellatio and in particular the swallowing of semen following that act.
counts 2 (sic), 3, 6, 7, 8, 9 and 11 it involved conduct alleging fellatio by CMW on the appellant (sic) and in particular on three occasions pressure by the appellant [on CMW] to swallow his semen. Further, counts 4 and 5 involved allegations of exposing CMW to pornographic videos depicting young women performing fellatio upon males and then swallowing their semen.
The fact that prior to the commission of these alleged offences, if accepted, the appellant made a comment to his five-year-old granddaughter that her grandmother, someone she loved and trusted[,] also liked to engage in this activity, must demonstrate a clear statement of distinct sexual interest by the appellant in CMW. The inescapable conclusion is that this evidence “is highly probative as corroboration of the complainant’s account of the alleged sexual misconduct by the accused against her.”[18]
The risk of misuse by the jury alluded to by the [appellant] cannot be made out. The learned trial Judge gave clear directions as to the direct use that could be made of the evidence. If the jury accepted the evidence of KJC and were satisfied beyond a reasonable doubt that the [appellant] made the comment to his granddaughter, then it is submitted the only rational inference open to them was to find it showed a sexual interest in the complainant and an attempt by the [appellant] to normalise particular sexual behaviour with his granddaughter. As stated by the majority in IMM v The Queen in discussing evidence admitted under s 66 of the Evidence (National Uniform Legislation) Act:[19]
[…] In any event, it is difficult to see how the jury could misunderstand the use to which the evidence could be put. There is no reason to think that the jury would apply it as tendency evidence, when they have been directed that they may use it more directly.
As in this case, the jury were entitled to use the evidence in a direct way to support the evidence of the complainant and reason towards guilt. It was not an example of an uncharged act of sexual activity that the jury could engage in impermissible propensity reasoning. Despite the confronting nature of the evidence, the only inculpatory effect of the evidence lay as a direct result of its probative value, the inappropriate sexual interest/relationship with his granddaughter.[20]
The errors underlined above are significant errors. First, it does not follow from the fact that the hearsay rule did not apply that the child’s statement is admissible or in evidence for all purposes. The evidence may still be excluded or its use restricted. For evidence to be used for a tendency purpose it must pass the requirements of s 97 and s 101 of the Evidence (National Uniform Legislation) Act. Second, while ‘complaint’ evidence may be used for two purposes – (i) the truth of the contents of the complaint; and (ii) evidence buttressing the credit of the complainant – it does so in a particular way, in the latter, by showing that the complainant has behaved in a manner consistent with the evidence she gave. The child’s statement is not complaint evidence. It is an integral part of CMW’s account of what happened. Subject to what is stated at [47] above, it is not truly independent evidence which supports the complainant’s version of events. Third, it does not matter that the child’s statement does not contain evidence of prior uncharged acts of sexual offending. The child’s statement is evidence of a discreditable act, and evidence of discreditable sexual acts may be used to show a tendency on the part of an accused which makes the commission of the offences charged on the indictment more probable[21], as was done by the Crown in this case. Fourth, it wrong to state, “the fact that the evidence in R v N.K.S. did not involve a representation from the complainant is immaterial due to the effect of s 66 [of the Evidence (Uniform National Legislation) Act]”. The two cases are not analogous. Section 66 of the Act does not operate of its own force to enable hearsay evidence to be used as tendency evidence; and the evidence in R v N.K.S. was truly corroborative evidence which was not used for a tendency purpose. Fifth, the child’s statement (which is a statement she made) cannot support the evidence of CMW in the same way that the psychologist’s evidence supported the evidence of the complainant in R v N.K.S. because the child’s statement is an integral part of CMW’s evidence. It is part of her own evidence and is therefore not corroborative evidence. Sixth, there was every reason to think the jury would apply the child’s statement as tendency evidence. That was the use the Crown urged the jury to make of the child’s statement. The reference to the part of the plurality’s reasons for decision in IMM v The Queen dealing complaint evidence[22] has been taken out of context by Senior Crown counsel. Eighth, the jury could not use the child’s statement in the direct way contended for by Senior Crown counsel unless it was tendered as tendency evidence. The evidence does not need to be an uncharged sexual offence to be tendency evidence, a discreditable sexual act may suffice.[23]
Tendency evidence
Tendency evidence is evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, which is admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind.[24] For the evidence to be admissible it must have significant probative value.[25]
Put another way, tendency evidence is evidence that a person has or had a disposition or inclination or bent to conduct themselves in a particular way or have a particular state of mind. If a relevant tendency is established, the person’s tendency may be used to infer that it is more probable or more likely that the person behaved in accordance with that tendency on an occasion which is the subject of the counts on the indictment. In Hughes,[26] Gageler J observed:
… [I]t is necessary to be clear about the problem to which the tendency rule is directed. The problem arises from the cognitive process necessarily involved in using tendency evidence to assess the probability of the existence of a fact in issue. The cognitive process is that mapped out in the statement of the tendency rule itself. Tendency evidence – be it of character or reputation or of conduct other than occasion in issue in a proceeding – is evidence that is used to prove to the tribunal of fact that a person has or had a tendency to act in a particular way or to have a particular state of mind. The tendency so proved to the tribunal of fact is then used by the tribunal of fact to predict or (to adopt terminology which describes the process of reasoning employed more accurately) to “postdict” the action or state of mind of the person on the occasion or occasions in issue in the proceeding. Applied to evidence of past conduct, tendency reasoning is no more sophisticated than: he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue.
Tendency reasoning, as courts have long recognised, is not deductive logic. It is a form of inferential or inductive reasoning. What it involves is ‘admeasuring the probability or improbability of the fact … in issue … given the fact or facts sought to be adduced in evidence’.
As Priest JA stated in Packard (a pseudonym) v The Queen,[27] “[t]he important distinction between tendency evidence and other evidence of sexual misconduct (‘context’ or ‘relationship’ evidence) is that tendency evidence is received in proof of the commission of the offence charged. Context evidence, on the other hand, is relevant only to the credibility of the complainant, in that his or her account of a particular event which is the basis of a charge may be more capable of belief when seen in the context of what the complainant says was his or her sexual relationship with the accused. Tendency evidence, if accepted by a jury, makes it more likely that the accused committed the charged offence, because it permits inductive… reasoning”.
One common type of tendency evidence is evidence from a complainant that an accused person has a sexual interest in or attraction to the complainant and a willingness to act on it, on one or more occasions. The basis of the admissibility of such evidence is its high probative value which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction, if the opportunity presents itself to do so again he will seek to gratify his sexual attraction to that other person by engaging in sexual acts with that person.[28]
Was the child’s statement tendency evidence?
Theoretically the evidence about the child’s statement may be categorised and used in a number of ways including context evidence, background evidence (relationship evidence or transactional evidence), and tendency evidence.
There has been a divergence in the decisions of intermediate appellate courts in New South Wales and Victoria about whether evidence of a child complainant which only establishes that an adult has a sexual interest in a child is tendency evidence or not. With one exception, the prevailing view of intermediate appellate courts in Australia now seems to be that evidence of an adult’s sexual interest in a child simpliciter is tendency evidence. That was the approach adopted by both this Court[29] and the High Court in IMM v The Queen.[30] The reason for this is that it is the experience of the courts and the community that such an interest frequently gives rise to the likelihood of unlawful sexual conduct, whereas sexual interest in an adult does not, of itself, give rise to such a possibility. In HML v The Queen,[31] Gleeson CJ stated that “Evidence of a sexual interest of a father in a child is evidence of a certain kind of propensity, a kind of propensity that jurors may regard as bearing upon the probability that the testimony of the child as to a particular act is true”.
In a number of earlier decisions, evidence from a child complainant about an accused person’s discreditable conduct showing a sexual desire or interest in a child has been treated as tendency evidence when the Crown has said that it is directly relevant to proving that the charged offences were committed. For example, in R v AH,[32] Ireland J, with whom Hunt CJ at CL and Levine J agreed, stated:
A consideration of this ground will be of assistance in a later trial. Prior to the Evidence Act 1995, and in R v Beserick, this Court held, on the basis of respectable authority, that evidence of conduct with a sexual connotation between the complainant and the accused other than that which is the subject of the offence or offences charged is relevant in two different ways:
(a)the relationship revealed may place the evidence of the events which give rise to a particular charge into their true context as part of the essential background against which the evidence of the complainant and of the accused necessarily fall to be evaluated: B v The Queen; and
(b)the guilty passion of the accused revealed – or, in less inflammatory terms, the sexual desire or feeling of the accused to the complainant – is directly relevant to proving that the offence charged was committed: R v Ball; see also Pfennig v The Queen.
The evidence – once admissible for either or both of those purposes – will also necessarily make the complainant’s evidence more credible in relation to the events upon which the charges were based.
Whether the Crown introduces the evidence for the former purpose, it is not tendency evidence, and the requirements of s 97 and s 101 are relevant: R v Harvey. Once admitted for that purpose, however, the evidence cannot also be used as tendency evidence in the sense that, because the accused had a guilty passion, he did the act in question unless it does comply with those requirements (Evidence Act, s 95), and the judge should direct the jury that they may not use it in that way unless it does comply. The direction which the judge gave as to the use of this evidence in the present case failed to make that clear. The evidence was nevertheless admissible for the former purpose because it threw light upon the relationship at the time of the events which led to the last of the offences charged.
Where the Crown does wish to use the evidence of guilty passion as tending to show that the accused did do the act in question (and thus that the complainant’s evidence that the accused did the act in question is more credible), it is tendency evidence and so must comply with s 97 and s 101 before it may be used for that purpose. [citations omitted].
However, a more nuanced approach was subsequently adopted by Hodgson JA in R v Leonard.[33] His Honour stated the following at [47] to [53].
As noted by McClellan CJ at CL in Qualtieri (at [72]), the admission of evidence of a sexual relationship between a complainant and an accused beyond the particular acts charged has caused difficulties, related to the difficulty of categorising the purpose for which the evidence is tendered. These difficulties are illustrated by the diversity of the views on the matter expressed by different judges of the High Court in Gipp v The Queen.
In R v AH and Qualtieri, it is suggested that such evidence may be admitted for either of two purposes, and that if it is admitted for one purpose it is to be characterised as relationship evidence, while if it is admitted for the other purpose, it is to be characterised as tendency evidence so that the requirements of s 97 and s 101 of the Evidence Act have to be satisfied.
However, it does seem to me that, in some cases, it may be appropriate to draw further distinctions. It seems to me that, where a man is charged with particular sexual assaults against the complainant, evidence that he committed similar assaults against the complainant on other occasions could be relevant in at least three different ways, only one of which would be as tendency evidence: [emphasis added]
(1)It may be relevant to the extent of removing implausibility that might otherwise be attributed to the complainant’s account of the assaults charged if these assaults were thought to be isolated incidents, in particular implausibility associated with the way each party is said to have behaved on these particular occasions.
(2)It may be relevant in supporting an inference that the accused was sexually attracted to the complainant, so that he had a motive to act in a sexual manner towards the complainant.
(3)It may be relevant in supporting an inference that the accused not only had the motivation of sexual attraction, but also was a person who was prepared to act on that motivation to the extent of committing sexual assaults.
Categories (1) and (2) depend entirely on the other sexual assaults been committed against the same person. Category (3) does not depend entirely on that, although generally evidence used for this purpose can have strong probative value only if the other assaults are against the same person.
In my opinion, use of the evidence for purpose (1) is plainly use as relationship evidence. Use of the evidence for purpose (3) is use as tendency evidence.
In my opinion, use of the evidence for purpose (2) is not use as tendency evidence: it is rather evidence supporting an inference that the accused had motivation to act as charged. Evidence of a similar kind could be provided by a letter from the accused declaring sexual attraction to the complainant, in the absence of evidence that the accused had actually done anything to or with the complainant. Evidence used in this way might be called relationship evidence or it might be called motivation evidence.
In my opinion, tendency evidence against an accused is evidence to the effect that the accused is a person who by reason of his or her character is more likely than others to act in a particular way or have a particular state of mind. Evidence that an accused actually has an ordinary human motive to do something, such as sexual feelings towards someone else, is not as such that kind of evidence. I do not think it could be said that, because a married man feels sexually attracted towards a woman other than his wife, he therefore has a tendency to commit adultery with her, even if he never does so [citations omitted].
Hodgson JA was the only member of the New South Wales Court of Criminal Appeal in R v Leonard who adopted this approach. The other members of the court, Grove and Adams JJ, did not find it necessary to undertake such an analysis.[34] The analysis of Hodgson JA in R v Leonard was considered by Hayden J in HML v The Queen with apparent approval,[35] and it was recently adopted by the Court of Criminal Appeal in Victoria in Quinn (a pseudonym) v The Queen.[36]
However, in ES v The Queen (No 1),[37] Hodgson JA forsook the position he took in R v Leonard.[38] His Honour, with whom Whealy and Buddin JJ agreed, stated:
Where a person is charged with one or more sexual offences against a child, evidence of uncharged inappropriate sexual contact between the accused and that child can have probative value. In my opinion, there are (at least theoretically) three broad ways in which it can do so:
(1) As context evidence (so that the charged acts are not seen unrealistically as being isolated);
(2) As motive evidence (disclosing a sexual interest in the complainant that could motivate the charged acts); and
(3) As tendency evidence (disclosing a tendency to have a particular state of mind and/or to act in a particular way, including a tendency to act on the sexual interest that the accused has).
However, although there is in my opinion a theoretical distinction between categories (2) and (3) (see Leonard v R at [48] – [67]; HML v The Queen at [155] – [158] per Hayne J, [273] – [279] per Heydon J), and although motive evidence as such is not subject to the requirements of s 97 of the Evidence Act, it is not practical to maintain that distinction in the case of the sexual interest of an adult in a child. This is (a) because the existence of that interests can be considered itself to manifest a tendency to have a particular state of mind, (b) because the uncharged acts will generally ipso facto have manifested a tendency to act on that interest, and (c) because the very powerful effect of tendency reasoning would be very likely to swamp any effect of motive reasoning: cf Leonard at [68], [101].
In Colquhoun v The Queen(No 1)[39], which was decided in 2013, MacFarlan JA, with whom Fullerton and Adamson JJ agreed, stated that the courts have treated simple evidence of the accused’s sexual interest in a child complainant as being tendency evidence subject to the strictures of s 97 and s 101 of the Evidence Act even when the evidence does not suggest that the accused had previously committed an unlawful sexual act in relation to the child. While his Honour expressed some reservations about his conclusion because in many instances the sexual interest of the accused in the complainant had not been acted upon, his Honour felt the court must accept the existing approach at least where there has been no specific challenge to it.
In 2011 in WFS v The Queen,[40] the Victorian Court of Appeal adopted a similar approach to Ireland J in R v AH. Having reviewed a number of relevant authorities, his Honour Robson AJA, with whom Buchannan JA and Whelan AJA agreed, stated:[41]
(1) The relationship evidence must satisfy the admissibility tests under s 55 and s 56 of the Evidence Act 2008. It must be relevant to some issue in the case.
(2) Relationship evidence of conduct with a sexual connotation between the complainant and the accused, other than that which is the subject of the offence or offences charged, may be relevant in two different ways:
(a)the relationship revealed may place the events which give rise to a particular charge into their true context, as part of the essential background against which the evidence of the complainant and of the accused necessarily fall to be evaluated; and
(b)the guilty passion of the accused revealed – or, in less inflammatory terms, the sexual desire or feeling of the accused for the complainant – is directly relevant to proving that the offence charged was committed.
(3) The first category of evidence is usually described as context relationship evidence and the second as “guilty passion” or as tendency or propensity relationship evidence.
(4) The “guilty passion” evidence, if admitted, may be used to establish that the accused is more likely to have committed the sexual acts he is charged with.
(5) The context relationship evidence must not be used to establish that the accused is more likely to have committed the sexual acts he is charged with.
(6) The context relationship evidence may be used to assess and evaluate the evidence of the complainant and the accused about each version of the alleged offences.
(7) The trial Judge should identify the relationship evidence and must instruct the jury on the use to which the relationship evidence may and may not be used.
[…]
In Ritchie (a pseudonym) v The Queen,[42] which was decided by the Victorian Court of Appeal in February 2018, Beale AJA, with whom Tate JA and Kyrou JA agreed, stated that as tendency evidence includes evidence of a tendency to have a state of mind, the scope of the evidence is therefore broad enough to encompass evidence of an adult’s sexual interest in a child. Further, the weight of authority clearly favours the view that evidence of an adult accused’s sexual interest in a child invites tendency reasoning and is to be treated as tendency evidence. In support of this proposition his Honour referred to ES v The Queen(No 1),[43] Colquhoun v The Queen(No 1),[44] WFS v The Queen,[45] and Hughes v The Queen.[46]
Beale AJA went on to state that the New South Wales approach, which was consistent with the approach of the Victorian Court of Appeal, was a sensible one. Practical considerations favour the New South Wales approach. Evidence of child sexual abuse is particularly likely to trigger emotive responses in jurors. It is appropriate, his Honour observed, that the safeguards contained pt 3.6 of the Evidence Act 2008 (Vic) regulate the admissibility of such evidence.
However, in October 2018 a different approach was adopted by the majority of the Victorian Court of Appeal in Quinn (a pseudonym) v The Queen.[47] One of the grounds of appeal in the case was that the trial Judge erred in leaving certain text messages from the appellant to the complainant to the jury for the purpose of establishing a relationship between the appellant and the complainant. As to this ground, the plurality of the Victorian Court of Criminal Appeal, Weinberg JA and Priest JA, stated at [5] to [11]:
Prior to trial, the prosecution flagged an intention to rely upon a large number of text messages between the mobile phones of the appellant and complainant (‘SS’) – to a large extent, reflecting their sexual desire for each other – in the period of six months following the time when the charged acts were alleged to have occurred. Over objection by defence counsel, the trial Judge ruled the whole body of the text messages to be admissible. From the body of text messages ruled admissible, however, the prosecution ultimately sought to rely on a 10 page sample of text messages – extracted from the whole body of messages – relating a period in late April 2015.
In this Court, counsel for the appellant in essence submitted that the evidence of the text messages, used for the purpose of establishing a sexual relationship between the appellant and SS, was – despite the prosecution’s expressed attitude – tendency evidence, which owed its admissibility to ss 97(1) and 101(2) of the Evidence Act 2008 (‘the Act’). Counsel submitted that, notwithstanding that the prosecution eschewed any reliance on tendency reasoning, by seeking to demonstrate the existence of a sexual relationship between an adult and a child the prosecution invited reasoning that the offending was more likely to have occurred by reason of the appellant’s ‘guilty passion’ for the complainant. Thus, so it was submitted, reliance upon an accused’s sexual desire for a child complainant, as making the allegations more likely, goes beyond ‘context evidence’ and involves tendency reasoning.
These submissions cannot be upheld.
No matter the criticisms that might be levelled at the recognised distinctions, a substantial body of authority holds that evidence that places relevant events in their true context, as part of the essential background, is not caught by the provisions of ss 97(1) and 101(2) the Act. This kind of context evidence may be tendered to explain the circumstances of the offence charged, so that a complainant is able to give a full account, and so that his or her description of the charged conduct will not appear ‘out of the blue’ and inexplicable on that account. Such evidence may also assist in explaining why the complainant did not complain in a timely manner about the offending, thus allowing the prosecution to meet a question which would naturally arise in the minds of the jury.
When evidence is tended simply to demonstrate the sexual desire of an accused for the complainant, it has been classified as a relationship evidence, not caught by ss 97(1) and 101(2). Evidence showing sexual interest is not regarded as relationship evidence, however, but as tendency evidence for the purposes of ss 97(1) and 101(2), when it supports an inference that the accused not only had a sexual attraction for the complainant, but was prepared to act on it (the distinction being that the mere fact that the accused has a sexual attraction to particular person does not necessarily reveal a tendency to gratify that attraction).
In Leonard, Hodgson JA observed that evidence of a sexual relationship between a complainant and the accused, beyond the acts charge, had been admitted so as to place the evidence of the charged acts into their true context, as part of the essential background against which the evidence of the complainant (and of the accused) necessarily fell to be evaluated; and also so as to demonstrate the sexual desire of the accused for the complainant, such evidence being directly relevant to proving that the offence charged was committed. […]
[There Honours then applied what was stated by Hodgson JA in R v Leonard at [48] to [52].]
In the present case, the text messages – with one exception – were led so as to support the inference that the appellant was sexually attracted to SS, so that he had a motive to act in a sexual manner towards her. As such, the text messages did not owe their admissibility to ss 97(1) and 101(2) of the Act.
No reference was made by their Honours Weinberg JA and Priest JA to the earlier decisions of the Victorian Court of Appeal of WFS v The Queen[48] and Ritchie (a pseudonym) v The Queen.[49] Nor was any reference made to the more recent New South Wales decisions and the fact that Hodgson JA had changed his opinion. Nor was any reference made to the following statement of the plurality of the High Court in Hughes:
[…] [Section] 97(1) in terms provides for the admission of evidence of a person’s tendency to have a particular state of mind. An adult’s sexual interest in young children is a particular state of mind. On the trial of a sexual offence against a young child, proof of that particular state of mind may have the capacity to have significant probative value.[50]
In our opinion, the courts in the Northern Territory should follow the approach that has been adopted by the New South Wales Court of Criminal Appeal in R v AH,[51] ES v The Queen (No 1)[52] and Colquhoun v The Queen(No 1),[53] and the Victorian Court of Appeal decisions of WFS v The Queen[54] and Ritchie (a pseudonym) v The Queen.[55] That is, evidence of an adult’s sexual interest in a child simpliciter should be treated as tendency evidence which is subject to the s 97 and s 101 of the Evidence (National Uniform Legislation) Act. This Court should do so, at the very least, when the evidence of the adult’s sexual interest in the child is used by the Crown in the manner identified in category two of the uses identified in R v AH[56] and WFS v The Queen.[57] That is, we should do so when the evidence is used for a tendency purpose, as occurred in this case. There are good reasons for doing so. Such an approach is consistent with what was stated by the plurality of the High Court in Hughes.[58]
In any event, on either of the two approaches adopted by intermediate appellate courts to evidence of an adult’s sexual interest in a child, the child’s statement in this case is tendency evidence. This is because, as the Crown stated, the evidence revealed not just a sexual interest in CMW but a tendency of the appellant to act on his sexual interest in CMW. That is to say, the content of the child’s statement showed that the appellant was grooming or attempting to groom the child.
Was the child’s statement admissible as tendency evidence?
The scheme for the admission of tendency evidence adduced by the Crown during a criminal trial under the Evidence (National Uniform Legislation) Act is well settled. Under s 97(1)(a) and (b) of the Act the Crown must give the appellant reasonable notice of the Crown’s intention to adduce the tendency evidence, and the tendency evidence must have significant probative value. Under s 101(2) of the Act the child’s statement cannot be used as tendency evidence unless the probative value of the evidence substantially outweighs any prejudicial effect the evidence might have on the defendant.
In an appeal against conviction to an intermediate court of appeal, it is for the appellate court itself to determine whether the evidence is of significant probative value, as opposed to deciding whether it was open to the trial Judge to conclude it was: R v Bauer (a pseudonym).[59] In determining the probative value of tendency evidence, a court must examine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue to a significant extent. The Court must consider: (i) the extent to which the evidence supports the alleged tendency, and (ii) the extent to which the alleged tendency makes the facts alleged to prove the charged offences more likely. There is likely to be a high degree of probative value where the evidence alone, or together with other evidence, strongly supports proof of a tendency, and the tendency strongly supports the proof of a fact that makes up the offence charged. Evidence of a single occasion of discreditable conduct considered together with the evidence of the charged acts is capable of meeting the tests for admission as tendency evidence.
The expression prejudicial effect in s 101(2) of the Evidence (National Uniform Legislation) Act is concerned with the risk that the jury may use the evidence improperly in some unfair way. In Hughes v The Queen[60] the High Court stated:
[…] The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.
In our opinion, the child’s statement has significant probative value. The principal issues at trial were whether the Crown had proven beyond reasonable doubt that the appellant committed the acts which comprised the counts on the indictment involving CMW and her sister, that is, whether the acts were committed, and whether the complainants were credible witnesses who gave truthful evidence. To prove its case the Crown relied heavily on the evidence of the two complainants, and the defence vigorously challenged the reliability and credibility of their evidence. It was put to the complainants by the defence that they had fabricated or concocted their evidence, that they were telling lies. In the circumstances, the evidence of the child’s statement that CMW made a contemporaneous statement to her mother which contained direct evidence which showed the appellant had a sexual interest in engaging in fellatio with CMW in a manner similar to the charged acts is very much capable of rationally affecting the probability of the existence of the facts in issue. As the child’s statement may be treated as a direct account of the conduct of the appellant which CMW reported to her mother in 2006, it strongly supports the tendency that the appellant had a sexual interest in CMW and a preparedness to act on it at that time, which makes the facts in issue (whether the complainants were truthful witnesses and whether the appellant committed the crimes against CMW) highly likely. The evidence strongly supports proof of a fact that makes up the charged offences. It may be inferred that a person who grooms his five year old granddaughter so she will engage in the types of sexual intercourse he is interested in, has a tendency to engage in that kind of sexual intercourse with her and is likely to have done so on the charged occasions. The child’s statement makes it more probable that the appellant committed the counts on the indictment involving CMW.
There are special and particular features of the child’s statement which give it significant probative value. The statement contains the particular details of the type of sexual intercourse the appellant desired to engage in with CMW, and ultimately (the Crown alleged,) did engage in with her, and showed that the appellant was prepared to go to the extent of stating that the child’s grandmother, someone CMW loved and trusted, liked engaging in this activity in order to groom her. It identifies the appellant’s particular sexual desire in words that describe the ultimate sexual acts committed by the appellant. It is highly unlikely that the five year old child would have fabricated or made up such a statement at the time she spoke to her mother. Taken together with CMW’s evidence about counts 4 and 5 on the indictment, it shows the preparatory steps and the incremental pattern of grooming the child, which the appellant engaged in before engaging in sexual intercourse of that kind with her. It supports the veracity of CMW’s evidence of grooming in relation to counts 4 and 5. The content of the child’s statement significantly increases the probability that the appellant committed the crimes against CMW charged on the indictment. The evidence shows the appellant had a very particular desire which he was prepared to act on.
However, there were risks that the jury may misuse the child’s statement. It is the kind of evidence that is likely to provoke high emotions in members of the jury because it is evidence of a grandfather corrupting and degrading a five year old child who was naively and innocently helping him with the shopping by saying her grandmother liked to engage in fellatio. So there is a risk that the jury’s assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the evidence. Further, because the child’s statement is such a clear and stark contemporaneous statement of the appellant’s conduct at the time, there is a risk that the jury would reason because the appellant is the kind of person who would make such a statement to a child he is the kind of person who would commit the crimes charged on the indictment, without carefully considering and evaluating the evidence that goes to each count on the indictment. There is a risk that the jury would give the evidence disproportionate weight. The risk is enhanced in this case for the following reasons. First, the evidence is introduced through the child’s mother who is likely to be given more credit than the child. Second, the lack of evidence of the context in which the statement was made. Third, the hearsay nature of the child’s statement, the fact that CMW had no memory of her conversations with the appellant and her mother, and the delay in the evidence about the child’s statement emerging, meant the child’s statement could not be properly tested in cross-examination.
The risk of the jury giving the child’s statement disproportionate weight has been further heightened in this case by the following remarks of Senior Crown counsel during his address to the jury in circumstances where the child’s statement formed a central part of the Crown address to the jury. Senior Crown counsel wrongly told the jury that KJC’s evidence about the child’s statement corroborated CMW’s evidence about the counts charged on the indictment involving her. This suggests that the child’s statement is evidence of the child’s mother which is independent of the child and supports the child’s evidence about the counts on the indictment. He also told the jury that if they accepted that the appellant made the statement to CMW there was no explanation consistent with innocence, the only rational explanation was the guilt of the appellant. This statement tends to convey to the jury that they may convict the appellant on the basis of the child’s statement alone.
However, these are all matters which could be overcome by appropriate jury directions. We find that the probative value of the contents of the child’s statement substantially outweighs any prejudicial effect it may have on the appellant. In our opinion, the evidence about the child’s statement was admissible as tendency evidence. The evidence is highly probative evidence.
Were the trial Judge’s directions to the jury about the child’s statement so deficient as to amount to a miscarriage of justice?
In this case the assessment of the trial Judge’s directions to the jury about the child’s statement is complicated by the following matters: (1) the child’s statement was not admitted as tendency evidence; (2) despite Senior Crown counsel’s denial that the evidence was tendency evidence the Crown addressed the jury on the basis that they could use the evidence for a tendency purpose; (3) the trial Judge directed the jury on the basis that the evidence was to be used for a credit or plausibility purpose; and (4) the child’s statement was admissible tendency evidence.
If the child’s statement was not to be used by the jury as tendency evidence (which is what the Crown contended in the absence of the jury in response to the defence’s objection to the evidence), his Honour the trial Judge’s directions to the jury were so deficient as to amount to a miscarriage of justice for the following reasons. First, his Honour did not direct the jury in accordance with s 95 of the Evidence (National Uniform Legislation) Act that the evidence of the child’s statement could not be used for tendency purposes. Second, his Honour did not correct the extensive use that Senior Crown counsel made of the child’s statement as tendency evidence in his address to the jury. Third, his Honour did not instruct the jury how they may use the child’s statement if it was not tendency evidence. Fourth, his Honour did not instruct the jury that the child’s statement was not independent of CMW and should not be given more weight because the evidence was adduced through CMW’s mother’s testimony.
Section 95 of the Evidence (National Uniform Legislation) Act states:
(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.
As the evidence in the child’s statement was admitted for a non-tendency purpose, the effect of s 95 of the Act is that the evidence could not be used to prove that the appellant had a relevant tendency, which is precisely how Senior Crown counsel told the jury it should be used. His Honour the trial Judge should have taken the jury to those parts of the Crown’s address where that occurred and told the jury that it was impermissible for them to use the evidence in that way. His Honour should have told the jury that the evidence did not go directly to the guilt of the accused. It demonstrated CMW had behaved in a manner consistent with her evidence about the charged acts and provided a context in which the jury could evaluate CMW’s evidence about the charged offences. The trial Judge should also have directed the jury that the evidence could not be used as evidence of a general or pervading state of mind because that would involve tendency reasoning.
However, as we have found the child’s statement was admissible tendency evidence, his Honour the trial Judge should have given the jury a direction that was suitable for tendency evidence in a child sexual assault case; and any deficiencies in the directions to the jury are to be measured as against the directions ordinarily to be given in such a case. Further, for the appellant to succeed on this ground it is necessary to determine if the trial Judge’s direction to the jury resulted in a miscarriage of justice and the appellant being subject to an unfair trial or a trial that was not conducted according to law.
As to the requirements for directions to be given to the jury by the trial Judge in 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, the High Court recently stated the following in R v Bauer (a pseudonym).
[…] it is appropriate to say something further of the directions ordinarily to be given to a jury in 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. Where evidence is admitted on that basis, the trial Judge should direct the jury that the Crown argues that the evidence establishes that the accused had a sexual interest in the complainant and a tendency to act upon it which the Crown contends makes it more likely that the accused committed the charged offence or offences. If the Crown also relies on the evidence as putting the charged offence or offences in context in some other identified fashion or respects, the trial Judge should further direct the jury that the Crown contends that the evidence serves also to put the charged offence or offences in context and identify the manner or respects in which the Crown contends that it does so. The trial Judge should stress that the evidence of the uncharged acts has been admitted for those purposes and, if the jury are persuaded by it, that it is open to the jury to use the evidence in those ways, although no other. The trial Judge should further 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. Contrary to the practice which has operated for some time in New South Wales, trial Judges in that state should not ordinarily direct the 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 the chain of reasoning to guilt.[61]
In our opinion, the above remarks of the High Court are equally applicable in this case even though the child’s statement does not constitute an uncharged sexual offence.
With that statement of the High Court in mind, in order to assess the adequacy of the trial Judge’s directions to the jury about the child’s statement it is necessary to consider the following matters. First, the directions which should have been given to the jury if the child’s statement was admitted as tendency evidence, in light of the fact that the child’s statement was a critical part of the Crown case against the appellant and the possible prejudicial effect of the statement on the appellant. The child’s statement was given great emphasis by Senior Crown counsel and the jury was told by him a number of times that there was no explanation for the words reported to have been spoken by the appellant to the child other than the guilt of the appellant. As we have said, this created a significant possibility that the jury may give the evidence undue weight. Any instructions to the jury were required to restore the appropriate balance to ensure a fair trial. Second, the extent to which the trial Judge’s directions departed from such directions.
In this case, the child’s statement required directions to be given to the jury to the following effect.
(1)The principal issue of fact in this case is - has the Crown proven that the accused committed the acts that constitute the crimes pleaded on the indictment. In other words, could you be satisfied beyond reasonable doubt that the complainants were truthful witnesses who gave reliable evidence.
(2)The Crown says the contents of the child’s statement go to prove that the accused committed the crimes against CMW that are pleaded on the indictment. That is, the Crown says the child’s statement goes to proving that the accused is guilty of counts 1, 3 to 9 and 11.
(3)The Crown says that the child’s statement reveals that the accused had a tendency to have a particular state of mind and a tendency to act on that state of mind; and the accused’s tendency makes it more likely that he committed the offences against CMW pleaded on the indictment. This requires you to consider whether the Crown has proven the relevant tendency and whether that tendency makes the commission of the offences more probable.
(4)The Crown says that the child’s statement reveals that the accused had a very particular sexual interest or desire in CMW, which was enduring, and as a result he started grooming her so he could engage in that particular sexual intercourse with her. The Crown says this makes it more likely that he committed counts 1, 3 to 9 and 11 on the indictment.
(5)Your common sense and life experience will inform you that a person who expresses a desire to engage in fellatio with a child in such a way that she consumes his ejaculate, and engages in grooming the child for such an act is more likely to commit such acts. The Crown says that CMW’s report to her mother reveals that the accused had such a mental state and engaged in such conduct. Whether the child’s statement does so is a matter for you to determine. If you find that the accused spoke the words attributed to him in the child’s statement in the context relied on by the Crown you may find it more likely that the accused committed the crimes pleaded in counts 1, 3 to 9, and 11 on the indictment.
(6)The tendency relied on by the Crown can only be used by you in the way that Crown suggests if you make two findings. First, that the accused had the conversation with CMW reported in the child’s statement. Second, the conversation occurred in the context relied on by the Crown, namely the accused spoke the words directly to CMW while they were alone. In considering the context in which the words may have been spoken you should consider that there is no direct evidence as to where, in the presence of whom, and when the accused had the conversation with CMW.
(7)The Crown relies on the following categories of evidence to prove that the accused committed the crimes against CMW charged on the indictment: (1) the direct evidence of CMW; (2) the complaint evidence of CMW; (3) evidence of uncharged acts; (4) the child’s statement; and (5) the evidence of CAW about the crimes alleged to have been committed against her. You should keep in mind that the child’s statement is only one part of the evidence relied on by the Crown. You should give it what weight you think it deserves in the context of the whole of the evidence. The Crown says that in considering the aspect of grooming you may take into account CMW’s evidence about counts 4 and 5 on the indictment.
(8)The evidence of KJC about the child’s statement is hearsay evidence. It is not evidence which is truly independent of CMW. It is not evidence which implicates the accused in the counts charged on the indictment in a way which is independent of the evidence of CMW. It is a report of what CMW told her mother outside of the court room about 10 years ago. It is part of CMW’s story. It is to be assessed by you in the same manner that you assess the other parts of CMW’s evidence.
(9)The child’s statement is not made more reliable or credible simply because it has been adduced through her mother. To the contrary, hearsay evidence is frequently unreliable evidence because it involves a report from a witness about what another person told the witness outside of the court room about something the other person observed. Such evidence contains the following risks. The first person may not have given the witness a complete and accurate account of what the person observed or may have misspoken or misdescribed the observed events. The first person may have spoken the words completely out of context. The witness may have been distracted and misheard or misunderstood the first person. The witness may not have a complete and accurate recall of what the first person told the witness. The witness may be unable to give an accurate account of what the witness was told by the other person. An honest witness who believes what he or she is saying is true and correct can still be mistaken.
(10)The defence was at a considerable disadvantage in cross-examining KJC and CMW about the child’s statement because KJC’s evidence emerged years after the alleged conversation with CMW, KJC knew very little about the context in which the conversation between CMW and the accused took place, and CMW had no memory of the conversations with the accused and her mother. This meant that CMW could not be cross - examined about the child’s statement.
(11)Before the child’s statement can be used as evidence going to proof of the accused’s guilt of the counts pleaded on the indictment it will be necessary for you to be satisfied that: (1) the contents of the child’s statement honestly and reliably report what the accused said to CMW, and (2) KJC’s evidence, honestly and reliably reports what CMW said to her about CMW’s conversation with the accused.
(12)If you find the conversation between CMW and the accused took place, you may find that the fact the CMW made a contemporaneous report of the accused’s conduct to her mother makes CMW’s evidence about the counts pleaded on the indictment more credible because in the past she has behaved in a manner consistent with her evidence about those counts. The child’s statement may also be used to rebut the contention of the defence that the allegations of CMW have been concocted or invented.
(13)The child’s statement is the kind of evidence that might provoke you to have an emotional response to it. You must be careful to avoid allowing any emotional response to distract you from a calm and objective assessment of the matter.
(14)The child’s statement is separate evidence from the evidence of the specific allegations about the counts on the indictment. You must not substitute the tendency of the accused which is revealed in the child’s statement for the specific evidence about each of the counts on the indictment involving CMW. The Crown is required to prove beyond reasonable doubt each of the counts on the indictment. While the tendency alleged by the Crown may make it more probable that the particular allegations of the counts on the indictment are true for the reasons I have stated, it is not enough for you to convict the accused on the basis that the accused had a sexual interest in the complainant on which he had acted in the past. You cannot find the accused guilty of any count on the indictment unless upon the consideration of all of the evidence relevant to that count you are satisfied of the accused’s guilt of that count beyond reasonable doubt. The child’s statement cannot be substituted for the evidence about the specific counts pleaded on the indictment. Before you can find the accused guilty of any count on the indictment you must be satisfied beyond reasonable doubt that all of the elements of each specific count are proven beyond reasonable doubt.
(15)If you find the accused spoke the words reported by CMW to her mother, you cannot and must not reason that the accused is generally a person of bad character and for that reason he must have committed the counts charged on the indictment. Nor can you reason that, without more than the child’s statement, the accused committed the counts pleaded on the indictment because he had such a tendency. That is not the purpose of the child’s statement being placed before you and you must not reason in that way.
In this case it was also necessary for the trial Judge to specifically refer to and correct Senior Crown counsel’s statement to the jury that the child’s statement corroborated the evidence of CMW and to place his statement to the jury that if the jury accepted the appellant spoke the words attributed to him in the child’s statement there was no explanation consistent with innocence in its proper context.
His Honour the trial Judge’s directions to the jury about the child’s statement did not deal with the following factors: (1) the child’s statement was not evidence that was independent of CMW and was to be assessed in the context of the whole of CMW’s evidence; (2) the evidence was not to be given greater weight because it was led from KJC, CMW’s mother; (3) the difficulties created for the defence by the hearsay nature of the evidence and the fact that CMW had no memory of the conversations with the accused and her mother; (4) the emotional impact of the child’s statement may have on the jury; (5) the necessity for the jury to be satisfied the conversation occurred in the context relied on by the Crown; (6) the fact the jury could not infer the appellant’s guilt solely from a tendency to have a sexual interest in CMW and a tendency to act on it by grooming the child; (7) the child’s statement was not to be substituted for CMW’s direct evidence about the counts on the indictment; and (8) the jury were not to reason in the manner identified in subparagraph 15 of [89] above.
In our opinion, his Honour the trial Judge’s failure to include in his directions to the jury the matters set out at [91] above, and his failure to correct Senior Crown counsel’s statement to the jury that the child’s statement was corroborative of the evidence of CMW, resulted in an unfair trial and a miscarriage of justice. His Honour’s instructions to the jury did not adequately deal with the prejudicial effect the child’s statement may have on the appellant and created a real risk that the probative value of the child’s statement was outweighed by its prejudicial effect because disproportionate weight was likely to have been given to the child’s statement. In particular, we consider his Honour’s failure to:
(1)correct Senior Crown counsel’s statement to the jury that the child’s statement was corroborative of the evidence of CMW,
(2)instruct the jury that the child’s statement was hearsay evidence and the facts that CMW had no memory of the conversations with the appellant and her mother, and there was a delay in the child’s statement produced, created difficulties for the defence in testing the evidence, and
(3)instruct the jury that it was not enough for them to convict the accused on the basis that the accused had a sexual interest in the complainant which the accused had acted on in the past, that they could not find the accused guilty of any offence unless upon the consideration of all of the evidence relevant to the charge they were satisfied of the accused’s guilt beyond reasonable doubt,
resulted in there being a real risk that the jury would have given disproportionate weight to the child’s statement.
We are also satisfied that his Honour the trial Judge’s failure to direct the jury in accordance with what we have stated above also resulted in the accused’s trial on count 12 being unfair as his Honour gave his imprimatur to the Crown’s position that the child’s statement supported the evidence of both complainants.
Additional uses of the child’s statement
While the child’s statement had permissible uses other than a tendency use, it is important to note that the child’s statement could not be admitted into evidence by the Court for those other uses and then used for a tendency purpose as the Crown did in this case.
Conclusions as to grounds 2 and 4
In the circumstances, ground 2 of the appeal is made out. Ground 4 is not.
Voir dire
The difficulties that have arisen in this case have, in part, come about as a result of the Crown’s failure to give a tendency notice and the objection to the child’s statement being made after the jury was empanelled. The procedures of the Supreme Court and the Supreme Court’s management of criminal cases enable such evidentiary matters to be thoroughly dealt with well before a jury is empanelled, and that should have occurred in this case given the prominence and significance of the child’s statement in the trial.
Proposed ground 3 of appeal
In our opinion, proposed ground 3 is not made out and leave to appeal on that ground should be refused.
The evidence of distress was adequately covered by his Honour the trial Judge’s directions to the following effect. His Honour directed the jury that the evidence of complaint which included the evidence about distress could be used by the jury to assess the credibility of the complainants. In doing so, his Honour instructed the jury that they should make their determinations based on “a cold, analytical analysis of the evidence and reach your decisions on that basis alone”, and they should not place too much weight on the demeanour of the witnesses. For his Honour to have done more would have highlighted the evidence of distress and potentially caused the jury to have placed too much weight on the evidence in circumstances where the Crown did not place a great deal of weight on that evidence.
Conclusion
The appeal is allowed on ground 2. Leave to appeal on ground 3 is refused.
[100]We set aside the appellant’s convictions on count 1 and count 12, and direct that there be a retrial of the counts on the indictment.
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[1] His Honour Grant CJ’s ruling was applied and not challenged in the last trial.
[2] The cross admissible evidence of each of the complainants about the counts on the indictment involving digital penetration.
[3] [2018] HCA 40; 359 ALR 359 at [67] – [71].
[4] DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at 210–11 [16]; R v Leonard [2006] NSWCCA 267; 67 NSWLR 545 at 536 [69] per Hodgson JA, 567 [102] per Adams J.
[5] HML v The Queen [2008] HCA 16; 235 CLR 334 at 387 [123] per Hayne J.
[6] Qualtieri v The Queen [2006] NSWCCA 95; 171 A Crim R 463; R v Li [2003] NSWCCA 407; R v AH (1997) 42 NSWLR 702; R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329; R v Cakovski [2004] NSWCCA 280; 149 A Crim R 21.
[7] [2016] HCA 14; 257 CLR 300.
[8] (2016) 257 CLR 300 at 317–8 [60] – [64] per French CJ, Kiefel, Bell and Keane JJ.
[9]This was expressly noted by the Victorian Court of Appeal in Bauer(a pseudonym) (No 2) v The Queen [2017] VSCA 176 at [75].
[10](2008) 359 ALR 359 at 374 [47] – [48].
[11] R v MLW (No 2) [2017] NTSC 20 at [2], [9].
[12] [2004] NSWCCA 144.
[13] R v OGD(No 2) [2000] NSWCCA 404; 50 NSWLR 433; KJR v The Queen [2007] NSWCCA 165; 173 A Crim R 226; Ritchie (a pseudonym) v The Queen [2018] VSCA 31 at [36] – [45].
[14] [2004] NSWCCA 144.
[15] [2004] NSWCCA 144 at [13].
[16] [1990] HCA 51; 171 CLR 207 at 211.
[17] [2004] NSWCCA 144 at [8]–[11].
[18] R v N.K.S. [2004] NSWCCA 144 at [21] per Howie J.
[19] (2016) 257 CLR 300 at 320 [74] per French CJ, Kiefel, Bell and Keane JJ.
[20] At [12]–[17], [20]–[25].
[21] R v EF [2008] VSCA 213; 189 A Crim R 463; R v McKenzie-McHarg [2008] VSCA 206; 189 A Crim R 291.
[22](2016) 257 CLR 300 at 320 [74] per French CJ, Kiefel, Bell and Keane JJ.
[23] R v EF (2008) 189 A Crim R 463; R v McKenzie-McHarg (2008) 189 A Crim R 291.
[24] Evidence (National Uniform Legislation) Act, s 97(1).
[25] Evidence (National Uniform Legislation) Act, s 97(1)(b).
[26] (2017) 92 ALJR 92; 344 ALR 187 at (ALR) 206 [70].
[27] [2018] VSCA 45 at [41].
[28]R v Bauer (a pseudonym) (2018) 359 ALR 359 at [51]; Packard (a pseudonym) v The Queen [2018] VSCA 45 at [22] per Priest JA.
[29]IMM v The Queen [2014] NTCCA 20.
[30](2016) 257 CLR 300.
[31] (2008) 235 CLR 334 at 353 [8].
[32] (1997) 42 NSWLR 702 at 708D–709A.
[33] (2006) 67 NSWLR 545 at 556–7 [47]–[53].
[34](2006) 67 NSWLR 545 at 567 [97] per Grove J and 567 [101] per Adams J.
[35](2008) 235 CLR 334 at 423–425 [273].
[36] [2018] VSCA 82 at [10]–[11].
[37] [2010] NSWCCA 197 at [38] – [39].
[38] (2006) 67 NSWLR 545.
[39] [2013] NSWCCA 190 at [22].
[40] [2011] VSCA 347; 33 VR 406.
[41] (2011) 33 VR 406 at 412–3 [38].
[42] [2018] VSCA 31.
[43] [2010] NSWCCA 197.
[44] [2013] NSWCCA 190.
[45] (2011) 33 VR 406.
[46] (2017) 92 ALJR 92; 344 ALR 187.
[47] [2018] VSCA 82.
[48](2011) 33 VR 406.
[49][2018] VSCA 31.
[50]Hughes v The Queen (2017) 92 ALJR 92; 344 ALR 187 at (ALR) 197 [31].
[51] (1997) 42 NSWLR 702.
[52] [2010] NSWCCA 197.
[53] [2013] NSWCCA 190
[54] (2011) 33 VR 406.
[55] [2018] VSCA 31.
[56] (1997) 42 NSWLR 702 at 708D–F per Ireland J, with whom Hunt CJ at CL and Levine J agreed.
[57] (2011) 33 VR 406 at 412 [38(2)] per Robson AJA, with whom Buchanan JA and Whelan AJA agreed.
[58] Hughes v The Queen (2017) 92 ALJR 92; 344 ALR 187.
[59] (2018) 359 ALR 359 at 379 [61].
[60] 92 ALJR 92; 344 ALR 187 at (ALR) 193–4 [17].
[61](2018) 356 ALR 356 at 386 [86].
Key Legal Topics
Areas of Law
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Criminal Law
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Evidence
Legal Concepts
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Appeal
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Charge
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