KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
THE QUEEN APPELLANT
AND
DENNIS BAUER (A PSEUDONYM) RESPONDENT
The Queen v Dennis Bauer (a pseudonym)
[2018] HCA 40
12 September 2018
M1/2018
ORDER
1. Appeal allowed.
2. The application for leave to cross-appeal be refused.
3.Set aside orders 2, 3 and 4 made by the Court of Appeal of the Supreme Court of Victoria on 30 June 2017 and, in their place, order that the appeal to that Court be dismissed.
On appeal from the Supreme Court of Victoria
Representation
B F Kissane QC with B L Sonnet for the appellant (instructed by Solicitor for Public Prosecutions (Vic))
C A Boston with P J Smallwood for the respondent (instructed by Doogue + George)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Dennis Bauer (a pseudonym)
Evidence – Criminal trial – Sexual offences with child under 16 years – Tendency evidence – Admissibility – Severance – Where evidence of complainant as to 17 sexual acts and several uncharged sexual acts admitted as tendency evidence – Where evidence of third party as to Charge 2 admitted as tendency evidence – Whether evidence of complainant and third party admissible as tendency evidence – Whether evidence of each charged act and uncharged act cross‑admissible as tendency evidence in proof of each charge – Whether tendency evidence had significant probative value – Whether possibility of risk of contamination, concoction or collusion relevant to determination of probative value – Whether probative value substantially outweighed any prejudicial effect – Whether tendency notice defective – Whether Charge 2 should have been severed from indictment.
Evidence – Criminal trial – Recording of evidence – Admissibility – Where evidence of complainant recorded at previous trial admitted – Where prosecutor told court that complainant had strong preference not to give evidence at trial based on advice from counsellors – Where defence counsel did not challenge complainant's preference not to give evidence – Whether in interests of justice to admit recording.
Evidence – Criminal trial – Hearsay – Admissibility – Where complainant made representations to third party that she was sexually assaulted by respondent – Where representations made in response to leading questions from third party – Where inconsistencies between complainant's representations and other evidence given by complainant – Whether occurrence of asserted facts fresh in complainant's memory at time of representations – Whether probative value of evidence outweighed by danger of unfair prejudice.
Words and phrases – "charged act", "collusion", "complaint", "concoction", "contamination", "credibility", "cross-admissible", "discreditable acts", "fresh in the memory", "improper prejudice", "jury directions", "previously recorded evidence", "propensity", "recording", "reliability", "severance", "sexual attraction", "sexual interest", "sexual offence", "significant probative value", "single complainant", "special feature", "tendency", "uncharged act", "unfair prejudice", "willingness".
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Bauer [2018] HCA 40
Case
[2018] HCA 40
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Crown against a decision of the Court of Appeal of the Supreme Court of Victoria, which had quashed the convictions of the respondent, Dennis Bauer. The dispute concerned the admissibility of certain evidence at trial, including recorded evidence of a complainant, tendency evidence relating to both charged and uncharged acts, and hearsay evidence. The Court of Appeal had found that the admission of this evidence, and the refusal to sever one of the charges, had occasioned a substantial miscarriage of justice.
The legal issues before the High Court included whether the trial judge erred in admitting the recording of a complainant's evidence, whether the admission of evidence from the complainant and a third party as tendency evidence was lawful, and whether this tendency evidence had significant probative value that outweighed any prejudicial effect. The Court also had to determine if the tendency notice was defective and if a particular charge should have been severed from the indictment. Furthermore, the admissibility of hearsay representations made by the complainant to a third party, particularly in light of leading questions and inconsistencies, was in question.
The High Court allowed the Crown's appeal on all grounds. It reasoned that the Court of Appeal had erred in its interpretation of "willingness" under s 381(1)(c) of the Criminal Procedure Act, finding that a complainant's reluctance to give evidence, rather than an outright refusal, could be sufficient to admit recorded evidence if it was in the interests of justice. The Court found that the recorded evidence was complete and competently cross-examined, and that the trial judge had correctly considered the factors under s 381(1) in admitting the recording. The High Court also found that the tendency evidence had significant probative value and that the trial judge had not erred in admitting it or in refusing to sever Charge 2.
Consequently, the High Court set aside the orders of the Court of Appeal and ordered that the appeal to that Court be dismissed, meaning the respondent's convictions were reinstated. The application for leave to cross-appeal by the respondent was refused.
Orders
Orders of the court
1. Appeal allowed.
2. The application for leave to cross-appeal be refused.
3. Set aside orders 2, 3 and 4 made by the Court of Appeal of the Supreme Court of Victoria on 30 June 2017 and, in their place, order that the appeal to that Court be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The Crown's appeal to this Court was put on four grounds, in substance as follows: (1) The Court of Appeal erred in holding that the trial judge was wrong to admit the recording of RC's evidence. (2) The Court of Appeal erred in holding that a substantial miscarriage of justice was occasioned by the admission of RC's and TB's evidence as tendency evidence.(3) The Court of Appeal erred in holding that the trial judge was wrong to refuse to sever Charge 2.(4) The Court of Appeal erred in holding that a substantial miscarriage of justice was occasioned by the admission of AF's evidence of RC's representations.Ground 1: willingness to give evidence The Court of Appeal's approach to the question of RC's willingness to give evidence for the purposes of s 381(1)(c) of the Criminal Procedure Act was incorrect. The notions of willingness and preference are not mutually exclusive and "unwillingness" is not restricted to unqualified refusal. In its natural and ordinary sense, "unwillingness" includes reluctance and loathness just as much as it does obduracy[30]. Hence: "Norfolk, for thee remains a heavier doom, which I with some unwillingness pronounce"[31]. An inquiry as to a person's "willingness" to act is not ordinarily conceived of as limited to whether the person refuses to act. It is naturally and ordinarily understood as seeking to ascertain to what degree the person is willing or unwilling to act – conceptually, where along the scale of willingness which extends from abject refusal to unbridled enthusiasm the person is disposed. There is no reason to suppose that "willingness" is used in any different sense in s 381(1)(c) of the Criminal Procedure Act. If Parliament had intended to confine the operation of the provision to complainants who refuse to give evidence, s 381(1)(c) would surely have been drafted in terms of a complainant's refusal to give evidence. Parliament's choice of the protean conception of "willingness" signifies that the question is one of degree.[30]See and compare R v Darmody (2010) 25 VR 209 at 214-215 [24]-[28].[31]Shakespeare, Richard II, act 1, scene 3, lines 150-151. Certainly, as the Court of Appeal observed[32], s 381(1) makes clear that a court may not admit a recording unless, having regard to the five considerations identified in pars (a) to (e) of the sub-section, it appears to be in the interests of justice to do so. The provision calls for a trial judge to weigh the identified considerations to determine whether, on balance, it is in the interests of justice to admit the recording[33]. But such is the nature of that exercise that the degree of unwillingness requisite to render it in the interests of justice to admit the recording is bound to vary according to the other identified considerations. For example, if a complainant's recorded evidence is incomplete, or if a complainant's recorded cross-examination is inadequate, or if there is some other risk of an accused being unfairly disadvantaged by admission of the recorded evidence, a trial judge should be loath to conclude that it is in the interests of justice to admit the recording, except, perhaps, where the complainant is not available to give evidence or refuses point blank to do so. By contrast, if the risk of disadvantage is less, a lesser degree of unwillingness will more likely suffice to tip the scales of the interests of justice in favour of admission. In such a case, it may be enough that the complainant is most reluctant to give evidence. And where, as here, a recording is complete and includes a cross-examination which is "conspicuously competent", there are no problems with editing, and there is no other reason to consider that the recording's admission will be unfairly disadvantageous to the accused, a still lesser degree of unwillingness on the part of the complainant to give evidence will suffice to tip the scales of the interests of justice in favour of admission.[32]Dennis Bauer (a pseudonym) (No 2) v The Queen [2017] VSCA 176 at [28].[33]See generally Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 17 September 2009 at 3377; Victoria, Legislative Assembly, Criminal Procedure Amendment (Consequential and Transitional Provisions) Bill 2009, Explanatory Memorandum at 28-29.
Decision
Reasons for decision
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
The respondent sought leave to cross-appeal on the basis that, if the Court of Appeal were correct in concluding that his convictions should be quashed, the Court of Appeal erred in ordering that a new trial be had. For the reasons given, the Court of Appeal should not have ordered that the convictions be quashed, and accordingly the application for leave to cross-appeal should be refused. Conclusion and orders The appeal should be allowed on all grounds and the application for leave to cross-appeal should be refused. Orders 2 to 4 of the Court of Appeal should be set aside and in their place it should be ordered that the appeal to the Court of Appeal be dismissed.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ