R v Evans
[2015] ACTSC 137
•1 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Evans |
Citation: | [2015] ACTSC 137 |
Hearing Date(s): | 25 July 2014 and 1 August 2014 |
DecisionDate: | 1 August 2014 |
Publication of Reasons Date: | 5 June 2015 |
Before: | Refshauge ACJ |
Decision: | 1. The evidence of each charged offence is admissible on each other charge for the purposes of proving the tendencies articulated by the Crown. 2. Evidence of the uncharged acts is admissible as tendency evidence. 3. The evidence of LH as to the first incident, summarised at [23](d), not be admitted as tendency evidence. 4. That there be a voir dire as to the evidence of the second incident, summarised at [30](e), following which the final ruling as to admissibility will be made. 5. Evidence of the first incident be adduced as context evidence if the evidence of the second incident is admitted. 6. The evidence of HC not be admitted as tendency evidence. 7. The evidence of the pretext call is admissible. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Trial –Act of indecency on a person above the age of 10 years but under the age of 16 years – Act of indecency on a person under the age of 16 years – Sexual intercourse with a person under the age of 16 years EVIDENCE – Admissibility – Tendency – Cross admissibility – Uncharged acts – Context evidence EVIDENCE – Admissibility – Pretext call – Caller becomes an agent of the state – Statements made are capable of being admissions |
Legislation Cited: | Crimes Act 1900 (NSW), s 40 Evidence Act 2011 (ACT), ss 55, 81, 84, 90, 97, 137, 184, Court Procedures Rules 2006 (ACT), r 4733(c)(i) |
Cases Cited: | Ali v The Queen (2005) 79 ALJR 662 De Jesus v The Queen (1986) 68 ALR 1 |
Parties: | The Queen (Crown) Edward Evans (Accused) |
Representation: | Counsel Ms S Gul (Crown) Mr S Whybrow (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Accused) | |
File Number(s): | SCC 42 of 2014 |
Refshauge ACJ:
The accused, Edward Evans, is a Catholic priest who particularly pastored to the members of his church who were of German extraction.
He has now been charged with eight counts of a sexual nature against the daughter of devout members of the Catholic Church to whom he ministered.
The trial has been listed to commence on 24 March 2015. Applications have been made by the accused to exclude certain evidence and by the Crown to grant leave to admit certain evidence.
The indictment
The offences in the indictment dated 17 April 2014 are in the following terms:
THAT between 1 January 1994 and 1 July 1994 at Canberra in the Australian Capital Territory EDWARD EVANS committed an act of indecency upon [BA] being a person of or above the age of 10 years but under the age of 16 years.
SECOND AND FURTHER THAT between 1 January 1994 and 1 July 1994 at Canberra
COUNTaforesaid EDWARD EVANS committed an act of indecency upon [BA] being a person of or above the age of 10 years but under the age of 16 years.
THIRD AND FURTHER THAT between 1 February 1996 and 31 October 1996 at
COUNT Canberra aforesaid EDWARD EVANS committed an act of indecency upon [BA] being a person under the age of 16 years.
FOURTH AND FURTHER THAT between 1 February 1996 and 31 October 1996 at
COUNT Canberra aforesaid EDWARD EVANS engaged in sexual intercourse with [BA] being a person under the age of 16 years.
FIFTH AND FURTHER AND IN THE ALTERNATIVE TO THE FOURTH COUNT THAT
COUNT between 1 February 1996 and 31 October 1996 at Canberra aforesaid EDWARD EVANS committed an act of indecency upon [BA] being a person under the age of 16 years.
SIXTH AND FURTHER THAT between 1 October 1996 and 16 May 1997 at Canberra
COUNT aforesaid EDWARD EVANS engaged in sexual intercourse with [BA] being a person under the age of 16 years.
SEVENTH AND FURTHER AND IN THE ALTERNATIVE TO THE SIXTH COUNT THAT
COUNT between 1 October 1996 and 16 May 1997 at Canberra aforesaid EDWARD EVANS committed an act of indecency upon [BA] being a person under the age of 16 years.
EIGHTH AND FURTHER THAT between 1 November 1996 and 16 May 1997 at
COUNT Canberra aforesaid EDWARD EVANS committed an act of indecency upon [BA] being a person under the age of 16 years.
The Crown Case
The Crown allegations, which, of course, have not been proved, are set out in the Case Statement, required to be filed under r 4733(c)(i) of the Court Procedures Rules 2006 (ACT). It is a useful requirement, especially in the case of pre-trial applications such as these; indeed, in R v Goodwin (2009) 233 FLR 473 at 479; [31], I said that such Case Statements are “frequently used ... to provide a basis for a pre-trial application such as ... on admissibility of evidence”.
That they continue to be so used is a testament not only to their value but to the increasing care and professional attention that prosecutors pay to them and to making them useful for such purposes. There is, however, one limitation to which I will refer below (at [56], [65]).
From the Case Statement filed in these proceedings, I can make the following summary of the Crown case, emphasising again that this is only the Crown case and I am making no findings of fact. For these purposes, I shall refer to the accused as Fr Evans and the complainant as BA.
BA’s parents were devout Catholics. Both BA’s father and Fr Evans spoke German and, because of their common interests, became close and BA’s parents would regularly attend the house where Fr Evans lived (the presbytery) in Braddon.
When visiting the presbytery, the guests would sit around a large dining table to share a meal. When BA and her family were present, she would often sit next to Fr Evans. She was often the only child present.
The first alleged incident occurred following a church service in the first half of 1994 when BA was, with her parents and other people, dining in the presbytery. BA says that Fr Evans rubbed her back before sliding his hand inside her pants from the back and moving his hand around her bottom, occasionally grabbing each cheek and putting his fingers between her bottom cheeks.
BA says that a second incident occurred during this period, about a month later, when she was again with her parents and other persons at a meal in the presbytery. She says she tried not to sit next to Fr Evans but was placed there and he again rubbed her back before again sliding her hands down into her pants and holding each one of her bottom cheeks. She says that, as she and her parents left, she ran out of the door.
BA did not tell her parents of either incident.
The next incident, BA says, occurred in 1996 when BA was between 12 and 13 years old. She was attending Merici College and was, at the time, in Year 7.
On the first of these occasions, BA says she had, sometime before the incident, hurt her back while playing representative softball. She and her parents were again at the presbytery with other persons and she was seated next to Fr Evans. When he went to rub her back, it hurt because of her injury and she pulled away from him in pain. Fr Evans did not try to rub her back again but put his hand into the back of her pants, touching her bottom.
The next incident was in the period between late 1996 or early to mid 1997, when BA says that it again occurred following a church service. BA says she was in the kitchen making coffee when Fr Evans came in and walked over to her putting his right hand on her stomach. He quickly slid his hand down the front of her pants and inserted his finger into her vagina or, perhaps, around her vaginal area, causing BA to feel some pain. He then quickly walked away.
BA says that a further incident occurred in this period when she was aged 13 or 14 years old where Fr Evans inserted his finger into her vagina or, perhaps, around her vaginal area. In this case, she was again in the kitchen of the presbytery when the other guests, including her parents, were at the dining table. She says that Fr Evans had touched her bottom while she was at the table and she became angry and left the room. In the kitchen, Fr Evans approached her, aggressively pushing himself against her so that she could not leave. He then inserted his finger into or around her vagina with some force, causing her pain. He then removed his finger and walked out of the kitchen.
The last incident recalled by BA happened, she says, in about the same period but before she turned 14 years old. BA says that she went with her mother to the presbytery to collect Fr Evans as he did not drive. They were planning to take him to their home for a meal. BA’s mother stopped off at a supermarket and, as it was dark, asked Fr Evans to wait in the car with BA. While BA’s mother was shopping, Fr Evans moved into the back seat next to BA and grabbed her left breast with his left hand on the outside of her clothing. He then pulled her onto his lap so that she was straddling him, saying words to the effect of “This is our little secret and this is the way we are. And this is okay”. When BA saw her mother approaching, she jumped off him.
Some years later, BA made a number of general disclosures to various people after people commented to her that her daughter looked like she had looked at that young age.
A number of uncharged acts were also revealed by BA. They were of the same general character as the incidents described above which are said to constitute the counts in the indictment. I set them out in summary form below (at [23]).
Tendency evidence
The Crown has applied under s 97 of the Evidence Act 2011 (ACT) for leave to adduce evidence which it says shows that Fr Evans had certain tendencies –
That the accused had a tendency to have a particular state of mind, namely:
(a)To have a sexual attraction to young girls.
(b)To have a sexual attraction to [BA].
That the accused had a tendency to act in particular ways, namely:
(c)To act on his sexual attraction to young girls.
(d)To act on his sexual attraction to [BA].
(e)To take advantage of young girls who viewed him in a position of trust.
These tendencies were identified in a Tendency Notice dated 25 June 2015, which notice is required to be given under s 97 of the Evidence Act.
The matters said to show the tendencies are as follows:
· Each of the incidents the subject of each charge.
· Other incidents (uncharged acts).
A summary of the evidence in relation to the uncharged acts is as follows:
(a) On several occasions between 1994 and 1996 Fr Evans and members of the congregation were at the presbytery for morning tea. On three occasions, Fr Evans sat at the living room table next to BA (about 13 years old). On each occasion he rubbed her back and then touched her bottom.
(b) Between 1994 and 1996 Fr Evans and members of the congregation were at the presbytery for morning tea. At some point BA, then about 11 to 13 years old, was in the kitchen getting coffee. As she was about to walk out of the kitchen Fr Evans approached her and grabbed her breasts for about 5 seconds.
(c) In about 1996, members of the congregation were again at the presbytery for morning tea. At some point BA, then about 13 years old, was alone in the kitchen. Fr Evans followed her into the kitchen and inserted his finger into her vagina.
(d) In about 1994 Fr Evans walked two young girls, HC and LH, each about 9 years old, to their home in Fisher. On several occasions, while Fr Evans was sitting at the kitchen bench in the home, he picked up LH and put her on his lap and patted her back. On one occasion he patted her on the bottom for about 3 – 4 minutes.
(e) On another occasion in about 1994 Fr Evans was at the home of HC in Fisher. He was sitting at the kitchen bench and picked up LH (about 9 years old) and put her on his lap. He then put his hand firmly on the front of her shorts and pressed down firmly on her crotch area.
The law as to the admission of tendency evidence has been considered in a large number of cases.
The first issue, of course, is that the evidence must be relevant to a fact in issue in the proceedings. That is a threshold question required to be answered; s 55 of the Evidence Act requires that evidence, to be relevant, must be capable of rationally affecting, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. If relevant under this test, then the evidence is, under s 56 of the Act, admissible.
The second issue, then, is whether the evidence is capable of disclosing a tendency that is relevant to the assessment of the probability of the existence of a fact in issue in the proceedings. It is to this question which many of the discussions in the authorities are directed.
In R v Lam [2014] ACTSC 49 at [40], I considered the authorities and summarised the principles applicable to such applications as follows:
I summarise the effect of the relevant provisions of the Evidence Act and the consideration of them by the authorities as follows:
· Evidence that the accused had a tendency to act in a particular way, or to have a particular state of mind, can be admissible to prove that he had that tendency, but only if the Court thinks that that evidence will have “significant probative value”: s 97(1)(b).
· An application to the court to permit such evidence to be led should carefully articulate the tendency that the evidence is said to prove.
· In approaching an application for permission to adduce tendency evidence the court must assess the extent to which the evidence has the capacity rationally to affect the probability of the fact in issue and then to assess and predict the probative value that the jury might ascribe to the evidence.
· Accordingly, it is important to identify the use to which the proposed evidence is to be put and the issue which it addresses.
· In assessing the probative value of the evidence, it must be assumed that the evidence will be accepted, and that any inference open to the jury and favourable to the Crown will be drawn.
· It must also be assessed having regard to all the evidence in the case.
· Tendency evidence has “significant probative value” if it has more than “mere relevance”, or if it is “important” or “of consequence”, though it need not have a “substantial” degree of relevance.
· As a general rule, the greater the degree of specificity with which similarities of the evidence can be identified, the more likely is the evidence to be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind.
· Nevertheless, admissible tendency evidence is not necessarily based on similarities and there is no requirement for the relevant conduct to be distinctive.
· Tendency evidence and coincidence evidence may not be used “unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”: s 101(2).
· “The possibility of prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, for example by giving effect to ‘some irrational, emotional or illogical response’ or ‘giving the evidence more weight than it truly deserves’’’.
· There may be discretionary reasons for excluding or limiting the evidence, such as where it is overwhelming or otherwise under ss 135, 136 or 137 of the Evidence Act.
This is the approach I shall adopt and apply. There is, in this case, no question about the notice given to the accused the Crown’s wish to adduce the tendency evidence. Proper notice was given.
The fact in issue in these proceedings is whether Fr Evans engaged in the conduct the subject of the charges. He denies that he did so.
The evidence, however, must be put in context. I had a transcript of an interview conducted between Detective First Constable Ball and Fr Evans.
In the interview, the following appears:
Q90.Yeah. What can you tell me about those allegations?
AFirst of all, all the allegations were – were supposed to be in my house in my house?
Q91.That’s correct, yeah.
ASee, she came there with her family. That is with her parents. So they were present if I did anything. Yes. I admit that I touched her bottom. I admit.
Q92.Tell me all about that, Father?
AYeah, I admit, but I did not what you said, lift her pants or something.
Q93.Put your hands inside her pants.
ANo. No. I didn’t. I touched her bottom from outside, yeah. That happens always because they spring – jump on me. She and her two brothers. So they liked me very much and they jumped on me. So I carried her, yeah, and of course I touched her bottom, yes, I – I admit that.
Q94.Mm.
ABut I didn’t put my hand inside her pants (note his hand movements, counter 18:38). You see, whatever I did the parent would have seen. They were present.
Q95.So Father, tell me all about when you did touch her bottom?
APardon?
Q96.So when did you touch her bottom?
AI lifted her up and I touched her bottom. (Arm movement to show how he lifted her up, counter 19:05).
Q97.Okay. Describe sort of how you touched her bottom? Like - - -
APardon.
Q98.How were you touching her bottom? Like - - -
AYeah, I touch like that and then of course it was like that so I must have squeezed her bottom, yeah. I admit that much. (Arm movement to show how he lifted her up, counter 19:14).
Q99.How many times do think that would have occurred?
AAh, it is quite normal to see – I don’t know here in Australia why it is such a big offence.
Q100.Mm.
ABut I just came from Europe and just like in a family, you know, there’s no malice, no sexual desires, nothing.
Q101.Is there anything else you want to tell me, Father - - -
APardon?
Q102.Is there anything else you want to tell me about – is there anything else you want to say about that allegation?
AYes. I never – you have seen my kitchen.
Q103.Mm.
AIf I had to have penetration it could not be in a second. To have vaginal penetration I need some time and have to put – take down her pants and penetrate just there. How could I do that? I never did it.
Q104.Okay. Yeah. What she’s alleging, Father, is that you’ve put your hands down the front of her pants and put your finger in her vagina.
AI – I didn’t do that. I toucher here (hand movements indicating the naval area, counter 20:46) ... (indistinct) ... Let me think. Yes, I did, I did touch her, yeah, but not as you said, penetrated and all that, no.
Q105.What do you mean by you touched, sorry?
AWhen we lifted her – I lifted her ... (indistinct) ... the hands were down, yes, I was – I touched her. From outside. No penetration. No. And you see, I was not looking for her, she was always coming to me. I was trying to avoid her.
He later said:
Q141.Okay. So you said earlier to me, Father, that ... (indistinct) ... you touched her bum - - -
AYes, yes.
Q142.- - - as you – as you motioned picking her up?
AYeah. I didn’t think it was anything – anything sexual because in Italy it is rather common ... (indistinct) ... I don’t know –
Q143.And - - -
ABut here – here, if it is an offence, I didn’t – I didn’t know. I did it innocently.
Q144.And what about her vagina?
AI didn’t – I did no penetration, nothing. I might have touched it, yes, when I lifted her up. Yes, I do admit that, yeah.
...
Q147.Whereabouts would it be that happened?
AOh. Certainly not in my kitchen, as she said. No. In my kitchen, no, because, you see, the parents were there. I would – if I wanted I wouldn’t dare to. It was like that. Maybe it was in a car.
Q148.Tell me about that, Father?
ASo I was sitting in the car and then she sat over me. And then I tried to take her away and I – I like that (hands indicate that they moved down to the vaginal area) I touch – I touched her vagina. Touch, to put her away to the other side.
Q149.How long would you have touched her for?
AMaybe an instant just to put her away.
There were a number of other references of a similar kind in the interview. Thus, it can be said that Fr Evans admitted to touching BA on the bottom and, fleetingly, on the vagina, but, he said, outside her clothes and not for sexual reasons. He did, however, express a concern at the touching of her vagina. He said:
Q529. How did you feel when you touched her vagina?
AWell, I was disturbed, I must say. I was disturbed. I knew at once that I should not have done it
Q530.So why were you disturbed at touching her vagina if it was an accident?
AIt was not an accident. I took her and I put her down and I touched, so it was not an accident. I touched it, yes.
Q531.Why did you touch her vagina?
AI didn’t mean to. It was just the act of putting her aside that – that it happened.
Q532.So in the process of putting her in her seat you touched her vagina?
AYeah.
Q533.Which was an accident?
AWell, you could call accident, yeah.
Q534.So why were you disturbed?
APardon?
Q535.Why were you disturbed, then? Why did you feel - - -
AYeah. Because you see when you touch somebody in these private parts there’s always a sense of guilt. You should not have done it. I felt that. That’s why I removed her so quickly.
Q536.Did you feel anything else?
AWhat do you mean?
Q537.Was it pleasurable?
ANo. It wasn’t pleasurable. Always, you see, I realise I am a priest and I must not do that. It’s just at once the guilt. I should not have done it.
Q538.Mm.
ANo pleasure.
Q539.Did you deliberately touch her vagina?
ANo. Not deliberately ... (indistinct) ... It happened, yeah.
Later, the following exchange occurred:
Q545. Do you agree that when you ...
AI even lifted her brothers. I put her [sic] on my shoulders.
...
Q547.Did you ever touch her brothers on the bottom.
ANo. (laugh) No.
Officials of the Catholic Church also discussed the matter with Fr Evans. In an interview with Matthew Casey, Professional Standards Officer of the Archdiocese of Canberra and Goulburn, the following exchange is reported to have occurred:
I said: ‘You have said that you patted her on the bottom and that you knew it was wrong. What do you mean by that?’
Father Evans said: ‘I patted her on the bottom, the whole time she as standing, I knew it was wrong but I didn’t think it was a crime. She said I penetrated her in the kitchen, I would have had to pull her pants down.’
I said: ‘Why did you do it?’
Father Evans said: ‘I did not want to have sex, it was not sexual. In some countries it not a crime.
I said: ‘So you knew it was wrong, you just did not know how seriously wrong it was.’
Father Evans said: ‘If I knew it was a crime, I would have come to you myself. She would chase me when they would come. I did not chase her. I tried not to do it again. What does she want after 15 or 20 years?’
As a result of these statements, it seems to me that there is likely to be no issue in these proceedings that Fr Evans touched BA on the bottom and the vagina, at least over her clothes, though the precise circumstances are, of course, vigorously contested.
I turn then to address the application by reference to the various incidents.
Other charges1.
In cases such as this, it is common that there will be cross-admissibility of the evidence on one charge as tendency evidence in respect of the other charges. This or some other basis (such as because it is context or relationship evidence, or coincidence evidence), is the justification for permitting the separate counts to be heard together: De Jesus v The Queen (1986) 68 ALR 1; Hoch v The Queen (1988) 165 CLR 292.
Of course, it is necessary that the other offences be proved beyond reasonable doubt before they can be used as tendency evidence to support another charge, as made clear by the High Court in HML v The Queen (2008) 235 CLR 334 at 362; [41], 370-1; [61]-[63], 377; [83], 390; [132], 406-7; [200], 415; [242], 415; [506], 500. This would, of course, have to be subject to specific directions at trial.
In my view, the evidence of each charged offence is admissible on each other charge for the purposes of proving the tendencies articulated by the Crown and I so rule.
The uncharged acts2.
The incidents involving AB mentioned earlier (at [23](a), (b) and (c)) are relevant to the more specific tendency asserted by the Crown, namely that they showed a specific interest Fr Evans is alleged to have had in AB.
It seems to me that while they are similar to the acts charged, they do provide probative evidence of the state of mind of Fr Evans and of his willingness to act on that state of mind.
In my view, they are admissible for a tendency purpose.
The evidence of LH – First Incident3.
This evidence is summarised at [23](d) above. It consists essentially of an occasion where Fr Evans patted the bottom of a young girl for three to four minutes.
The patting was, so far as the material before me is concerned, over LH’s clothes. She says she felt uncomfortable and, as a result, got off Fr Evan’s lap.
The admissions to which I have referred above (at [36]) are not formal admissions under s 184 of the Evidence Act.
There is a difference of view about the consequence of making a formal admission. In this Court, Gibbs J described the effect of an admission, then made under s 404 of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory, as it then stood, in R v Longford (1970) 17 FLR 37 at 38, as follows:
It seems to me that there are three propositions that may be laid down as to the effect of s 404. The first is that admissions made under that section render it unnecessary for the Crown to call evidence to prove the matter admitted. In other words, an admission under s 404 dispenses with the necessity of proof of the matter admitted.
Secondly, it follows that the Crown ought not call evidence to prove a matter which has been the subject of an admission, at least if the calling of such evidence would be likely to have any prejudicial effect on the accused.
Thirdly, however, if the evidence in question not only goes to prove a matter admitted, but also has probative value on another issue, the admission of one fact does not prevent the evidence as to that fact being given when it is relevant to another issue.
That decision was followed by the Full Court of the Supreme Court of South Australia in R v O’Sullivan (1975) 13 SASR 68 at 74, per Bray CJ at 72, and per Mitchell J, Sangster J not expressly deciding, and by the Court of Criminal Appeal of Queensland in R v Raabe [1985] 1 Qd R 115 at 116 per Connolly J, at 123 per Thomas J, at 124 per Derrington J. There have also been statements made in the High Court supportive of that position: Yager v The Queen (1977) 139 CLR 28 at 39, per Gibbs J; Ali v The Queen (2005) 79 ALJR 662 at 674; [73] per Callinan and Heydon JJ; Stubley v Western Australia (2011) 242 CLR 374 at 401-2; [94] per Heydon J though these statements are not unequivocally supportive.
The approach has been expressly rejected as the law in NSW, where the Crown was permitted to lead evidence of matters the subject of such an admission by the Court of Criminal Appeal in R v Smith [1981] 1 NSWLR 193 at 194-5, though Pullin JA, in dissent, pointed out in Stubley v Western Australia [2010] WASCA 36 at [92]-[107] that this was permission strictly obiter. Nevertheless, Jenkins J in Fox v Walker [2004] WASCA 246 at [57] expressed support for the views expressed in R v Smith. The approach in R v Smith has also been followed in R v JGW [1999] NSWCCA 116 at [42]-[44] and R v Frazer [2002] NSWCCA 59 at [46].
I do not have to resolve this issue, which is a vexed one. In the first place, even in R v Smith, the court agreed that the approach it espoused did not apply where the court exercised its discretion to exclude such other evidence, the subject of an admission formally made, where that other evidence had prejudicial significance unfairly disproportionate to its probative value.
In any event, there was no formal admission here and it is by no means clear that the principle applies where there is no formal admission, as contemplated by statute, but merely what may be termed an admission by confession.
That there is such an admission, however, is relevant to the question of the probative value of the evidence to be led.
In the case of the evidence of LH, it is not obvious that it is probative of any sexual interest in young girls, since the event was not of a touching underneath the child’s clothes, though that is not necessary; it may be that merely patting a young female child’s bottom could be evidence of such an interest.
On the other hand, there is a risk that the jury may reason that, because he has done it before it must be evidence of such an interest, despite his protestation that his European heritage makes it an innocent interaction.
It seems to me that this evidence adds nothing to the evidence given on a number of occasions by Fr Evans, both in multiple answers to the police interview and also in the answers he gave to Mr Casey.
One of the difficulties in dealing with such a matter as a pre-trial application is that the full extent of the evidence is not clear. In this case, that means that I do not have a formal admission which could make the ruling easier. It may be that the evidence of some or all of the admissions made will be rejected at trial or will be subject to a direction under s 137 of the Evidence Act or in some other way be not as completely available as appears in the documentary material I have before me.
Accordingly, while, in my view, the admissions to which I have referred mean that I consider that the evidence of LH is not to be admitted because its probative value is outweighed by its unfair prejudicial value, I am prepared to revisit the issue if the Crown considers that any ruling or limit on the reception of the evidence renders the probative value more significant.
As to whether this would permit the Crown to re-open its case or to lead the evidence of LH in reply should the limiting effect of the evidence only become apparent or effective in the Crown case, it is a matter on which I cannot rule either way in advance.
Having said this, however, the evidence may be admissible as context evidence in support of the evidence of the second incident involving LH which I will now address.
The evidence of LH – Second Incident4.
This evidence is summarised above at [23](e). It consists of an occasion where Fr Evans put his hand firmly on the crotch of LH.
This goes further than the evidence of the first incident. In particular, it is less likely to have been explicable in an innocent way.
It is also helpful to support a tendency articulated by the Crown which is inconsistent with the explanation given by Fr Evans that the touching of BA’s vagina was accidental and fleeting.
The difficulty in making a final ruling on this matter, however, became apparent in the course of submissions. The precise value of the evidence will depend on the actual evidence given. This is, again, an indication of some of the limitations on the consideration of such matters as a pre-trial application divorced from, not only all the other evidence, as pointed out by Simpson J in R v Fletcher (2005) 156 A Crim R 308 at 316; [33](ii), but also without hearing the actual evidence given by LH as opposed to her written police statement.
My present view, therefore, is that if the evidence is consistent with the statement made by LH, then the evidence is admissible as tendency evidence because it addresses the issue of a tendency to touch young girls inappropriately and, therefore, is capable of supporting the assertion of a tendency to have a sexual interest in young girls and to act on such an interest.
In order, however, to make a final ruling, it is agreed that there should be a voir dire at which LH will give her evidence and be cross-examined so that I can determine whether the actual evidence likely to be given at the trial has the character that it appears to have in the statements. If so, I will admit the evidence.
Admission as non-Tendency Evidence
The question then arises as to the extent to which evidence, such as the first incident involving LH, should be admitted, though not as tendency evidence.
In her statement, LH says that her dealings with Fr Evans made her uncomfortable. He would, she said in the statement, frequently pick her up and put her on his lap. That, in itself, is no grounds for her feelings; that is a common and unexceptional way in which adults interact with children. That the child is uncomfortable does not make the action improper, let alone indecent. It was in this context that the evidence summarised above (at [23](a)) is to be considered.
LH also said, in her statement, that she sought to avoid Fr Evans and she and her friend HE would go home by different ways to avoid him. This seemed to me, however, to be mainly caused because her and her friend would then have to sit and talk to him rather than engage in their own activities.
It is, however, in this context that the evidence of the second incident is set. The fact of the first incident seems to me to be an important context for the second incident, though I do not find it admissible evidence of tendency for the reasons set out above.
It would, however, be unnatural for the evidence of the second incident to be adduced without the context of the first incident and I will permit that first incident to be adduced as context evidence if the evidence of the second incident is admitted.
Thus, I will direct that there be a voir dire as to the evidence of the second incident, following which I will make my final ruling on this issue.
Evidence of HC5.
Although not included in the Tendency Notice, evidence of an incident involving HC was also the subject of submissions. In her statement, HC said:
One of the things [Fr Evans] would do, as he was standing, was to pick us up and tickle us, making us laugh, and ‘jump us up and down’. Even when we would tell him to stop, he continued to tickle and jump us up and down. By ‘jump us up and down’ I mean that he would bounce me by lifting me up and down in a bouncing motion but during the whole time, the front of my body would be in contact with the front of his body so that it felt like my body was rubbing against his. The priest would do this to me and [LH]. I don’t remember him favouring one of us over the other.
When the priest picked me up by my bottom, he would have one of his hands on each of my buttocks, I remember that there were times when he squeezed my buttocks while he held me. This was only for a few seconds, and I think my mum would be in the kitchen while we were in the dining room. It was over my clothes and would be a light squeeze. Looking back on it now, I feel that there was something wrong with what he was doing, but at the time, as I was a child and was trusting of adults introduced to us by the church or school, I didn’t feel there was anything wrong with it.
I accept the submissions made on behalf of Fr Evans that picking up a young girl, in the presence of her parents, which may include the incident of touching of the child’s buttocks outside her clothing could not, as so described, be an act of indecency such as to found the asserted tendency. See my analysis of the meaning of indecency in R v DM [2010] ACTSC 137 at [219]-[221].
Here, however, the evidence asserted some squeezing of the buttocks, not an “incidental touching”. It is an action capable of being regarded as indecent. See, for example, Tulk v Moore (1997) EOC 92-899 at 77,083.
Nevertheless, there is no claim of touching underneath HC’s clothing, though, of course, the tendency evidence does not have to be similar to the acts that constitutes the offence.
Further, I need to bear in mind whether there is a possible explanation, a real possibility of such an explanation and not one that is fanciful, and that is inconsistent with guilt. See DSJ v The Queen [2012] NSWCCA 9 at [79]-[80]. Innocent, incidental touching would be such an explanation. It does not, however, alter my view as to the capacity of the tendency evidence to assist in establishing a fact in issue because of the squeezing, which is very unlikely to be “incidental” or “accidental”. It is not necessarily indecent, but is capable of being so found by a jury.
That, however, is not the end of the matter. I must also take into account the admissions made and the risk of unfair prejudice.
For the reasons set out above (at [46]-[55]), I do not consider that this is admissible as tendency evidence. It seems to me that the probative value, especially in the light of the admissions, is slight. I accept that the element of squeezing the buttocks of HC is an additional factor but it seems to me that it is so ambiguous and equivocal as not to add much to the probative value of the incident. Again, the unfair prejudice of the evidence being admitted is sufficiently significant that the evidence should not be admitted.
The Pretext Call
It has become common in particular cases alleging historic sexual abuse for an investigative device, now termed the “pretext call” (R v SAP; Ex parte Attorney-General of Queensland [2006] 1 Qd R 367 at 368; [4]), to be used.
In such cases, the complainant makes a recorded telephone call to an accused person who is engaged in conversation with the expectation that an admission will be made by the accused which can then be used in the prosecution proceedings.
The person making the telephone call, usually a complainant, is not told who to call on the telephone. It is important that the complainant is not coached by police and is not told by police what to say in the telephone conversation. In particular, the person will not be given a script or list of questions.
The evidence was that the complaint made by BA was referred to police by Mr Casey. As a result, police interviewed BA, who made complaints of sexual acts by Fr Evans with her while she was a child.
Prior to 1 May 2013, Detective Senior Constable Ball formed the view that there was not enough evidence to charge Fr Evans with any offences. He had statements from BA’s mother and father which did not corroborate her complaints. Indeed, contrary to the evidence of BA that she was made to sit on the lap of Fr Evans against her will and that she would try to avoid him, her parents stated that she was very affectionate and would seek out Fr Evans and chat. Indeed, they said she would seek him out and sit on his lap. Detective Senior Constable Ball, however, considered that, while the statements of BA’s parents did not support her allegations, they were “neutral”.
On 1 May 2013, BA telephoned Fr Evans on a pretext call from the Winchester Police Centre, Belconnen.
Detective Senior Constable Ball gave evidence that BA was “offered ... the opportunity to be involved in a pretext call”. He described what he did as follows:
I explained to [BA] that it is a opportunity for her to make a call which would be recorded; that I wouldn’t be able to advise her what to say; that it would be in a room at the Winchester police centre, and that we would facilitate a recording device and she would be given instructions on how to [sic] that recording device. I also explained that I wouldn’t be able to inform her of the number to call or who to call.
He explained that, before the call was actually made, but while there was a recording being made, BA made a statement in accordance with a pro-forma that Detective Senior Constable Ball had provided. BA completed the blanks in it, stating her full name, date of birth, the date on which the call was made, that she was at the Winchester Police Station and then continued:
I am the person who will activate this recording device. I activate this device freely and without inducement or coercion from any other person. The telephone number that I am about to dial is six two four seven ... and I expect to speak to Father Eddy EVANS.
Detective Senior Constable Ball was clear that he did not ask BA to call Fr Evans nor imply that she should but he frankly accepted that it was likely that she would and he expected her to do so.
Detective Senior Constable Nguyen also gave evidence. It was in large part to the same effect. She transcribed the call after it had been completed.
Included in the call were the following exchanges, where “BA” is the complainant and “EE” is Fr Evans:
BAThe – yes, the reason I am calling is because I told my family a lot of things that you did to me when I was a child ...
EEWhat!
BAI told my family a lot of things that you did to me when I was a child when you used to touch me.
EEWhat are you saying?
BAYou used to touch me as a child Father Eddy.
EEYou were after me and you even came to the ... (indistinct) ... and I was running away from you.
BAAnd you were what worry?
EEYou were, I was running away from you.
BARunning away from me?
EEYes, yes, you were the one who were always approaching me.
BAOh, no, never.
EEOh yes, yes, yes.
...
BAI’m not claiming that you had any sex with me.
EEWhat are you talking about?
BAYou yourself ...
EEWhat ...
BAOn occasions where you would touch my body in your, in your dining room at your own house, that was you. No one can make you touch me in front of all the – with these people there secretly, how could I enforce that kind of thing.
EEWhat, what are you saying [BA]? You come to my house and I touch you?
BAThat is – yes, you did.
EEAnd then now, what do you want now?
BAAll I want is that – for you just to save both our souls, to you know, let me move forward. You know, you know that this happened.
EEYes move forward yes so what do you want me to do ... (indistinct) ...?
BAI want you to know what you have done and I want you to let my soul be free and so that I don’t have to hid this anymore that you did that to me.
EEAlright. Alright ... (indistinct) ... Right okay [BA].
BASo you know that this happened to me?
EEYeah, and so what do you, do you want after twenty years you come to tell me. What do you want me to do to you now?
...
BAI know what you did to me as a child and I have dealt with it for twenty years. But I need the recognition that you – that you know in your soul, and to save your soul, and to my soul, that at least you apologise for what you have done ...
EEAlright if you want I will apologise to you now. I, I, I don’t know what you want with that.
BAI want an apology for what you have done.
EEAlright, I apologise to you then.
...
BAOkay, thank you – I’m, you know, I know that is twenty years later and you’ve obviously been held in the dark and I thank you for that. ... (indistinct) ... [BA] please move on. [BA] just move on. Move on.
EENow don’t live in your past, you live in your present and future.
BAWell that’s what I’m trying to do Father Eddy ...
EEYeah alright.
BAThat’s what I’m trying to do, but I want you to understand and I needed that apology from you and the recognition from you.
EEI’m giving that to you now.
BAI know that, and the recognition from you for what you have done, that’s all.
EE... (indistinct) ... Alright, alright I recognise that.
BAOkay, thank you for your phone call Father Eddy, thank you
EEOkay [BA] ... (indistinct) ... just move on [BA]. Move on put these things behind us and then look at the present and future no?
The legality of the call
A preliminary matter arose as to whether the recording of the pretext call was done in contravention of an Australian law.
The recording of the call, it was submitted by the Crown, was made legal by s 38(4) of the Surveillance Devices Act 2004 (Cth) which is in the following terms:
(4)A person (other than a federal law enforcement officer) who is assisting a federal law enforcement officer acting in the course of his or her duties may, without warrant, use a surveillance device for any purpose:
(a)that involves listening to, or recording words spoken by a person; and
(b)that is referred to in subsection (1);
if the first-mentioned person is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard.
Mr S Whybrow, counsel for Fr Evans, submitted that, as BA was not told who to telephone and as people who make a call in such circumstances may “call anyone they like and talk about anything they like”, such an arrangement would not constitute assisting the police in the course of their duties.
He put his submissions, perhaps colourfully, as follows:
Police gave the evidence that effectively, in my submission your Honour would find on that evidence, whether it’s been told to them or not, ‘Do not say who to call. Give them an opportunity to call whoever they like. Here’s the proforma, fill in the number, fill in the blanks. You call whoever you like. Fingers crossed it’s the right person and we get something out of it. But away you go.’
Again, without being too facetious, that could involve ringing up mum and say this is what’s happened, it could involve ringing up an ex-boyfriend and saying, ‘I told you I’d get a statement made to the police one day and have the strength.’ It could involve ringing up a radio station. Who knows.
It seems to me that the possibility of a telephone call being made to a person or in a way that would not assist police does not so infect the process as to completely exclude the operation of s 38(4) of the Surveillance Devices Act.
Further, if the call was made to a person who could not ultimately give assistance, that does not necessarily render the recording of the call illegal. In the same way, the execution of a search warrant is not rendered illegal if no relevant evidence is found during the search.
If, as appears to be the case (see below at [104]), BA becomes, for the purposes of the call, an agent of the State, then it seems to me that she is thereby assisting police in the course of their duties.
I do not have to consider whether a call of the kind suggested by Mr Whybrow would take the recording outside the legality provided by s 38(4) of the Surveillance Devices Act. It was not such a call. It was a call to Fr Evans, a suspect, and it was intended to see if evidence could be obtained by it.
That a call in other circumstances may be illegal does not render it illegal where legislative authorisation is provided. See, for example, R v Workman (2004) 60 NSWLR 471.
The law as to pretext calls
Pretext calls are regularly made in Queensland and there are approved procedures there to regulate them. Much of the law, therefore, comes from this jurisdiction and also from Western Australia.
New South Wales and Victoria have been more cautious, though the recordings of such calls have been admitted into evidence, as in R v Jones (No 2) (2007) 173 A Crim R 309. In this Territory, there was some initial resistance to the admission of recordings from such calls in R v Lieske (2006) 166 A Crim R 213, though, even in that case, the admissibility of such evidence was not held to be inevitably inadmissible.
An admission made by a suspect is admissible, even though it is hearsay evidence. That is clear from s 81 of the Evidence Act.
The circumstances in which such an admission is made, however, have caused some concern and consideration in the cases.
While the way in which the police have been involved and arranged the call is intended to distance them from the actual content of the call, there seems no doubt that it would not have been made were it not for the involvement of the police who set up the mechanics of the recording of the call and the evidentiary “pro forma” details that accompanied it. Thus, BA became, relevantly, an agent of the State. In R v Swaffield (1998) 192 CLR 159, the High Court followed the Supreme Court of Canada in R v Broyles [1991] 3 SCR 595. In that case, speaking for the Court, Iacobucci J described the test of whether a person who gave evidence of a conversation with an accused person was an agent of the State (there called an informer) as follows (at 608):
I would accordingly adopt the following simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?
The answer in this case is clearly in the affirmative. It seems accepted that a complainant making a pretext call is, in that sense, an agent of the State. See, for example, R v Cavalli (2010) 206 A Crim R 306 at 311; [8]. There may, however, be “degrees” to which the person is such an agent. In R v Jones (No 2), Buddin J said of the wife of the accused, Ms Smith, in respect of a pretext call (at 328; [63]):
Fourthly, although it may be appropriate to regard Ms Smith as having been an ‘agent’ of the police, that characterisation is not a completely accurate description of what she said and did particularly bearing in mind her reasons for wanting to speak to her husband. However, the evidence also reveals that Ms Smith had a significant degree of autonomy in how she conducted the conversations. She was not, for example, provided with a list of draft questions. Nor did she have a script or any specific instructions as to what questions she was to ask. Both she and the police wished to ascertain the applicant’s whereabouts. Furthermore, Ms Smith wanted to ascertain for herself what it was that the applicant maintained had occurred that evening. That she wanted to do so is entirely understandable, given that the deceased and the other victims were members of her birth family, and that the other persons involved in the incident were her husband and members of his family. Ms Smith also entertained what appear to be legitimate concerns that her decision to marry the applicant may itself have caused or contributed to animosity between the two families.
Other decisions have also queried the extent to which a person in the position of BA is an agent of the State. See Pavitt v The Queen (2007) 169 A Crim R 452 at 488; [71].
This characterisation of BA as an agent of the State does not, of itself, render the recording of the pretext call inadmissible but the circumstances must then be considered with care.
The circumstances under which the evidence of such conversations is admissible has been considered by the Victorian Court of Appeal in R v Juric (2002) 4 VR 411, following the High Court’s decision in R v Swaffield. The Court of Appeal said at 439; [47], setting out the relevant principles as follows:
In Swaffield and Pavic the High Court considered two separate cases involving the question whether confessional statements voluntarily made to a witness who, unbeknown to the accused was a police officer, or acting on behalf of the police, should be admitted into evidence. Toohey, Gaudron and Gummow JJ, in a joint judgment, and Kirby J separately, held that the admissibility of confessional material turns first on the question of voluntariness, next on exclusion based on considerations of reliability, and finally on an overall discretion taking account of all the circumstances (including the means by which any admission was elicited and whether unfair forensic advantage may be occasioned by admission of the evidence) to determine whether the evidence was admitted or a conviction obtained at an unacceptable price having regard to contemporary community standards. Brennan CJ said that the conduct of law enforcement officers should be considered under the public policy discretions except where that conduct makes the reliability of a confession dubious, in which case the unfairness discretion can be invoked.
Thus, voluntariness, reliability and fairness are critical matters when considering the matter.
One of the significant matters in respect of fairness is whether the call is being used to “get around” the exercise of an accused of his or her undoubted right to silence. See R v East (2003) 13 NTLR 91 at 99; [30] and the cases there cited.
Another matter is whether the call amounted to an interrogation. See, for example, R v Chimirri (2002) 136 A Crim R 381.
The relative relationship between the parties to the conversation is also relevant, as in R v M (2002) 135 A Crim R 324. How the conversation is conducted is also relevant, as to whether there is any badgering of the accused.
This is relevant because it was pointed out by Toohey, Gaudron and Gummow JJ in R v Swaffield at 201; [89] that, in contrast to the Canadian cases, such as R v Broyles which refers to “informed choice”, the Australian decisions dealing with voluntariness “tended to approach the matter in terms of an immunity from compulsion”, an emphasis they thought was “well placed when voluntariness is in issue, but too narrow when the exercise of discretion is involved”. That is to say, compulsion is not integral to the fairness discretion, which is a discretion to exclude, not a discretion to admit.
It is also important to consider whether the accused has already been spoken to by police and, in particular, has declined to speak to them. See Pavitt v The Queen at 488; [71].
The admissibility of the call
For the purposes of this decision, I am prepared to consider that BA was an agent of the State, though the dilution of the significance of that position or the extent of it, in cases such as R v Jones (No 2) and Pavitt v The Queen, is very relevant.
It seems to me that there is no issue of voluntariness here. There is also no issue of reliability. Fr Evans, though elderly, was, on the evidence, not enfeebled nor overborne and the conversation of BA in the phone call was neither an interrogation nor badgering.
It was, at one stage, suggested by Mr Whybrow that the call was oppressive. This would activate an exclusion under s 84 of the Evidence Act. No other description in s 84(1) was relevant: there was no violence or inhuman or degrading conduct involved.
In R v JF (2009) 237 FLR 142 at 148; [36]-[42], I said:
36The term “oppressive conduct” has not been exhaustively defined. Indeed, in Ul Haque (2007) 177 A Crim R 348 (at 378), Adams J noted that “the precise boundaries of… ‘oppressive … conduct’ are uncertain”. In Higgins v The Queen [2007] NSWCCA 56, Hoeben J (Sully and Bell JJ agreeing) held (at [26]) that “the concept [of oppressive conduct] should not be limited to physical or threatened physical conduct but can encompass mental and psychological pressure”.
37Because of the effect of the section, namely automatic exclusion of the confession, with no discretion, and a relatively low threshold of causation, it does seem that the conduct involved should be of a relatively significant level of impropriety.
38Thus, so far as oppressive conduct is concerned, as Smart J (with whom James and Sperling JJ agreed) said in R v Heffernan (unreported, NSWCCA, Smart, James and Sperling JJ, 16 June 1998):
There are sound reasons for not giving an expansive interpretation to “oppression” in s 84 of the Evidence Act. The section applies to both civil and criminal proceedings. The section does not confer a discretion; if evidence of an admission falls within the terms of the section, then the evidence is not to be admitted. The section places the onus on the issue of admissibility on the proponent of the evidence (assuming that the evidentiary onus under [s 84(2)] has been satisfied). It is sufficient to require the exclusion of evidence of an admission under s 84, that the court is not satisfied that the making of the admission was not ‘influenced by’ any conduct of the prescribed [sic] kinds.
39.“Oppression” has been described in another context as the exercise of authority or power “in a burdensome, cruel and unjust manner”: Wily v Fitz-Gibbon [1998] FCA 121. That seems a most inappropriate description. As Professor Dennis (at p 39) has pointed out, in England:
Oppression was a matter of degree which depended to a considerable extent on the circumstances of the interrogation and the character of the suspect.
40In R v Helmhout (No 2) [2000] NSWSC 225, a young mother was warned that if she did not tell the truth she would look like a bad mother. As she feared that her children would be removed from her, the confession was excluded under s 84.
41In R v Paris (1993) 97 Cr App R 99, an interview was described as oppressive when it included shouting, bullying and hectoring. It has to be said, however, that it occurred over some 13 hours spread over 5 days during which the accused denied his involvement more than 300 times.
42In R v Ye Zhang, the accused was offered witness protection in return for co-operation in the context of two alternatives: to co-operate or be charged with murder. This was at the same time as being told he could expect a reduced or no sentence for co-operation. There was also a threat of physical violence and he was told that once the detective had left the room, there would be no further opportunity for co-operation. This, combined, was held to be oppressive conduct sufficient for the purposes of s 84.
Insofar as I commented in R v JF at [37] that there should be a relatively significant level of impropriety, this has been rejected by the New South Wales Court of Appeal in Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299 at 360; [241] when the court said:
In R v JF Refshauge J commented (at [37]) that because the effect of s 84 was ‘automatic exclusion of the confession, with no discretion, and a relatively low threshold of causation, it does seem that the conduct involved should be of a relatively significant level of impropriety’. With respect, that imposes a gloss on the section which, in our view, is not warranted by its language. The only question s 84(1) poses is whether the ‘admission and [its] making’ were ‘not influenced by’ conduct of the nature identified. At best, as was said in R v Heffernan (at 22), the wide scope of the section in its application in both civil and criminal proceedings is a reason for not giving ‘an expansive meaning to ‘oppression’ in s 84’.
In the circumstances, I am satisfied that there was no oppressive conduct on the part of BA.
So far as undermining the right to silence enjoyed by Fr Evans, I note that police had not spoken to him nor attempted to do so. I also note that, when, shortly after the conversation, they sought to do so, he did speak to them and did not exercise the right he had not to do so. There was no relevant power imbalance between BA and Fr Evans. The call did not amount to an interrogation.
The real challenge, however, was that the evidence was suggested not to be capable of amounting to admissions. It is not necessary that such statements are unarguably admissions. Whether they are or not is, in any event, a question for the jury. The question of law is whether they are capable of being admissions. See R v Saikal [1993] 1 Qd R 312 at 318-9.
Even though any admissions discernible in the call were general rather than specific to the counts on the indictment, I am satisfied that they could be said to be capable of supporting BA’s evidence in a general way. See R v Cahill [2014] QCA 208 at [9].
Looking carefully at the answers given by Fr Evans, they could well be seen as “tacit admissions to the conduct of which he was accused” (R v Cavalli at 312; [11]) even though there is some ambiguity. That he was apologising for reasons other than an acknowledgement of the offending is certainly a possibility that no doubt Mr Whybrow will urge on the jury. That, however, does not seem to me to render the evidence inadmissible.
Clearly, careful directions will have to be given to the jury and I will seek specific assistance from counsel in that regard.
Nevertheless, in my view, the evidence of the pretext call is admissible.
I have also considered whether the evidence should be excluded under the discretion exercisable under s 90 of the Evidence Act, which permits a court to exclude admissions relied on by the Crown if, having regard to the circumstances in which they were made, it would be unfair to an accused person to use the evidence at trial.
I note that, in Pavitt v The Queen at 488; [75], the court considered that a relevant factor in such a case was whether the police had decided to charge the accused. The evidence here was that the police had, prior to the pretext call taking place, considered they were not in a position to charge Fr Evans.
There is no doubt that Fr Evans could have terminated the conversation and no impediment to him doing so was suggested.
His freedom to speak or not was not impugned.
The circumstances of the conversation were not so contrary to public policy such that it should be excluded.
In Lithgow City Council v Jackson (2011) 244 CLR 352, the High Court considered evidence of an ambulance officer’s notes. French CJ, Heydon and Bell JJ held (at 365; [26]) that the evidence was “so ambiguous that it could not rationally affect the assessment of the probability of a fall from a vertical fall”.
While the principle cannot be in doubt, the circumstances of that case are quite different. I do not consider that ambiguous evidence is inherently inadmissible. In my view, the ambiguities in the call are not of the same kind as in that case.
I do not consider that I should exclude this evidence.
I will, accordingly, give directions in accordance with these reasons.
| I certify that the preceding one hundred and thirty-four [134] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge. Associate: Date: 4 June 2015 |
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