PARTIES: The Crown (Appellant) Adrian Ford (Respondent)
JUDGMENT OF: Campbell JA Howie J Rothman J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 2008/2734
LOWER COURT JUDICIAL OFFICER: Sorby DCJ
LOWER COURT DATE OF DECISION: 20 October 2009
COUNSEL: D Woodburne SC (Crown) RJ Button SC; AJ Williams (Respondent)
SOLICITORS: Solicitor for Public Prosecutions (Crown) Legal Aid Commission (Respondent)
CATCHWORDS: EVIDENCE – tendency – section 97 Evidence Act – what amounts to tendency evidence – whether evidence of a tendency is admissible even if that tendency is not itself the criminal activity alleged – whether tendency evidence must itself show a tendency to commit acts similar to the criminal activity alleged – degree of specificity required of tendency evidence – test for relevance of tendency evidence – test of appellate review of decisions about tendency evidence – whether reviewable according to Warren v Coombes (1979) 142 CLR 531 or House v The King (1936) 55 CLR 499 – APPEAL AND NEW TRIAL – appeal – nature of appellate review of a decision as to the admissibility of tendency evidence – whether reviewable according to Warren v Coombes (1979) 142 CLR 531 or House v The King (1936) 55 CLR 499 – Court of Criminal Appeal – section 5F Criminal Appeal Act – whether an appeal to the Court of Criminal Appeal is an appeal by way of rehearing – nature of the error that is required to be established
[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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AGLC
R v Ford [2009] NSWCCA 306
Case
[2009] NSWCCA 306
Decision Date
CaseChat Overview and Summary
In the case of R v Ford, the Respondent was convicted of indecent assault of AG and ZM, and sexual intercourse without consent of TL. The Crown sought to introduce evidence of a tendency, under section 97 of the Evidence Act 1995, to commit sexual offences against young women under certain circumstances. The central issue was whether this evidence was admissible and had significant probative value. The Respondent argued that the evidence did not demonstrate a sufficient tendency to commit acts similar to those alleged, as required by the Act.
The court had to determine the admissibility of the tendency evidence, focusing on whether the evidence demonstrated a tendency to act in a particular way and had significant probative value. The Crown's tendency was described as a propensity to sexually molest young women who had stayed over at the Respondent's house, had consumed a significant amount of alcohol, were asleep, and where there was a risk of being discovered by others. Judge Sorby initially ruled that the evidence of TL was inadmissible in the trial concerning AG and ZM. However, the question of whether evidence of AG and ZM would be admissible in the trial concerning TL remained unresolved.
The Court of Appeal found that the evidence did not demonstrate a sufficient tendency to commit acts similar to those alleged. The differences in the nature of the sexual acts alleged against TL, AG, and ZM were significant enough to undermine the Crown's argument. The court held that the evidence did not show a tendency to act in a particular way, as the acts and circumstances were not similar enough. Therefore, the evidence did not have significant probative value, and the trial judge's decision to exclude it was upheld. The appeal was dismissed, and the convictions were quashed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The Respondent resists each of the first three orders sought. In the alternative, it submits that even if order 1 is made, orders 2 and 3 should be refused.The Procedural Background The Respondent was originally charged, by a single indictment presented in the District Court, with three different types of offence, namely:Sexual intercourse with TL without consent on 14 January 2007.Indecent assault of AG on or about 20 May 2007.Indecent assault of ZM on or about 20 May 2007. On 29 July 2008, the Crown had served on the Respondent’s solicitor a notice pursuant to section 97 Evidence Act 1995 of what it contended was a tendency of the Respondent. The Crown gave notice that it would be contending that, by reason of that tendency, evidence of each of TL, AG and ZM would be admissible against the Respondent on all counts of the indictment. The Respondent brought a Notice of Motion dated 15 August 2008 in those District Court proceedings. It sought, in substance, that the sexual intercourse without consent charge be severed from the remaining counts on the indictment and tried separately, that the evidence in relation to TL be inadmissible in any trial concerning AG and ZM, and that the evidence in relation to AG and ZM be inadmissible in any trial concerning TL. On 8 September 2008, his Honour Judge Sorby ruled that the sexual intercourse without consent count should be severed from the other counts, that the sexual intercourse without consent count be tried separately from the other counts, and that the evidence in relation to TL be inadmissible in any trial concerning AG and ZM. The transcript of the hearing does not reveal any ruling about whether the evidence in relation to AG and ZM would be admissible in any trial concerning TL. No reasons for judgment were delivered, and no formal orders or rulings were made. The trial of the counts alleging indecent assault of AG and indecent assault of ZM proceeded on the next day. That trial resulted in the conviction of the Respondent on all counts. On 10 March 2009, the Respondent was arraigned before his Honour Judge Berman on an indictment containing the remaining single charge, of sexual intercourse with TL without consent on 14 January 2007. The Crown asked the judge for a ruling that the evidence of AG and ZM was admissible as tendency evidence in the trial relating to TL. The Crown Prosecutor appearing before Judge Berman was a different prosecutor to the one who had appeared before Judge Sorby. The prosecutor told Judge Berman what his understanding was of the rulings that Judge Sorby had made. The transcript continues:“HIS HONOUR: I understand. His Honour decided that the evidence in relation to the events of 14 January 2007 could not be used as tendency evidence in relation to the events of May 2007, is that right?CROWN PROSECUTOR: That’s my understanding, I wasn’t there--HIS HONOUR: But he didn’t decide the other way?CROWN PROSECUTOR: No, your Honour.” Counsel appearing for the Respondent before Judge Berman was the same counsel who had appeared for the Respondent before Judge Sorby. Judge Berman enquired of that counsel about the application made to Judge Sorby. Counsel told Judge Berman that the application was for severance of the counts, “… and that the Crown be not permitted to adduce in the trial of the indecent assault counts evidence of TL--HIS HONOUR: But of course not the other way around because that was the trial that his Honour was dealing with at the time.[COUNSEL]: That’s right.”
Evidence
Evidence Before The Court
On 29 July 2008, the Crown had served on the Respondent’s solicitor a notice pursuant to section 97 Evidence Act 1995 of what it contended was a tendency of the Respondent. The Crown gave notice that it would be contending that, by reason of that tendency, evidence of each of TL, AG and ZM would be admissible against the Respondent on all counts of the indictment. The Respondent brought a Notice of Motion dated 15 August 2008 in those District Court proceedings. It sought, in substance, that the sexual intercourse without consent charge be severed from the remaining counts on the indictment and tried separately, that the evidence in relation to TL be inadmissible in any trial concerning AG and ZM, and that the evidence in relation to AG and ZM be inadmissible in any trial concerning TL. On 8 September 2008, his Honour Judge Sorby ruled that the sexual intercourse without consent count should be severed from the other counts, that the sexual intercourse without consent count be tried separately from the other counts, and that the evidence in relation to TL be inadmissible in any trial concerning AG and ZM. The transcript of the hearing does not reveal any ruling about whether the evidence in relation to AG and ZM would be admissible in any trial concerning TL. No reasons for judgment were delivered, and no formal orders or rulings were made. The trial of the counts alleging indecent assault of AG and indecent assault of ZM proceeded on the next day. That trial resulted in the conviction of the Respondent on all counts. On 10 March 2009, the Respondent was arraigned before his Honour Judge Berman on an indictment containing the remaining single charge, of sexual intercourse with TL without consent on 14 January 2007. The Crown asked the judge for a ruling that the evidence of AG and ZM was admissible as tendency evidence in the trial relating to TL. The Crown Prosecutor appearing before Judge Berman was a different prosecutor to the one who had appeared before Judge Sorby. The prosecutor told Judge Berman what his understanding was of the rulings that Judge Sorby had made. The transcript continues:“HIS HONOUR: I understand. His Honour decided that the evidence in relation to the events of 14 January 2007 could not be used as tendency evidence in relation to the events of May 2007, is that right?CROWN PROSECUTOR: That’s my understanding, I wasn’t there--HIS HONOUR: But he didn’t decide the other way?CROWN PROSECUTOR: No, your Honour.” Counsel appearing for the Respondent before Judge Berman was the same counsel who had appeared for the Respondent before Judge Sorby. Judge Berman enquired of that counsel about the application made to Judge Sorby. Counsel told Judge Berman that the application was for severance of the counts, “… and that the Crown be not permitted to adduce in the trial of the indecent assault counts evidence of TL--HIS HONOUR: But of course not the other way around because that was the trial that his Honour was dealing with at the time.[COUNSEL]: That’s right.”
Decision
Reasons for decision
In the course of argument before his Honour Judge Sorby, the Crown refined somewhat the way it formulated the tendency. The judge identified the tendency that the Crown ultimately came to rely upon as being:“… a tendency to act in a particular way, namely to sexually molest young women who (1) have stayed over at his house after attending a party, (2) have consumed a significant amount of alcohol, (3) are asleep, (4) where there is a risk of being discovered by others in the house.”The Judgment Appealed From Judge Sorby incorporated by reference into his judgment a table that the Crown had prepared that set out similarities and differences between the accounts of the three women. The judge recorded the Crown’s submission that the circumstances surrounding the alleged assaults had striking similarities, and that although the actual acts of sexual molestation of the three women were different, it would be “unduly narrow” to emphasise these differences as they only played a part in the overall pattern of behaviour. He recorded the submission of the Respondent that, “not only must the surrounding circumstances of the acts be similar, as they here are as demonstrated by the Crown’s schedule, but the various sexual activities must be similar as well …”. The judge referred to, but distinguished, the statement of Blanch J (with whom McClellan CJ at CL and Hislop J agreed) in R v Smith [2008] NSWCCA 247; (2008) 190 A Crim R 8 at 12-13 [17], where Blanch J said:“The trial judge did note the similarity of the surrounding circumstances but in addition to that, in my view, there were similarities in relation to the way the offences were alleged to have occurred. The significant feature of the complaint of TG was the fondling and stroking of her vagina and legs. The evidence relating to the first occasion where the respondent is charged with an offence against TM involved him stroking her vagina and touching her bottom before he inserted his finger in her anus. The evidence relating to the second occasion was that after he had put her hand on his penis and tried to pull her towards his penis, he began touching her vagina before he inserted his finger in her vagina. On the third occasion he was stroking her vagina before he inserted his finger in her vagina. In my view the virtually identical surrounding circumstances of all of these allegations and the similarities involved in carrying out the various activities involved in the allegations does lead to the conclusion that the evidence sought to be tendered by the Crown is admissible as tendency evidence. That conclusion is not frustrated simply by the fact that on some occasions the respondent went further than simply touching and fondling.” Judge Sorby recorded a submission by counsel for the Respondent that the last sentence of this quotation from the judgment of Blanch J had to be seen in the factual context of that case, whereas in the case before Judge Sorby there was “a dramatic difference in the sexual molestation alleged to have occurred between the accused and [TL]” and that of which AG and ZM had complained. Judge Sorby set out the relevant parts of the statements of each witness, and concluded:“There is a marked contrast in the events described by [AG] and [ZM] and that of [TL]. This is not a case where the offender whilst with [TL] ‘went further’. There is no evidence that anything else occurred other than what is set out in the statement, and to suggest otherwise would be speculation. Whilst not – for tendency to apply, the evidence need not demonstrate a tendency to commit a particular crime, the rule applies to evidence showing a tendency to ‘act in a particular way’.In my view, such a particular way includes not only the general circumstances surrounding a specific act as set out here in the Crown’s schedule, but also as important the particular act or acts and the immediate circumstances around those act or acts that is alleged to have been committed by the accused. I have set out the specific acts earlier in this judgment.In my opinion, the significant difference between what the jury found that the accused did to [ZM] and [AG] compared to what is alleged by the Crown the accused did to [TL], notwithstanding the considerable similarities and surrounding circumstances at the accused’s house on 14 January 2007 and 20 May 2007, as set out in the Crown’s schedule – that the similarities of the sexual interference on the two occasions are significantly different to such a degree that the proposed evidence of the Crown’s tendency does not amount to tendency and the application fails.”
Ratio Decidendi
Legal Principle Established
The test for whether evidence not only has probative value, but also “significant probative value” was described by Lehane J in Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 175-6. His Honour said that relevance was not enough, but rather it must be shown that the evidence “could rationally effect the assessment of the probability of the relevant fact in issue to a significant extent; ie, more is required than mere statutory relevance.” Similarly, in R v Lockyer (1996) 89 A Crim R 457 at 459 Hunt CJ at CL noted that the terms of the definition of “probative value” are substantially similar to those of the definition of “relevance” in the Act, and said:“… the probative value of evidence is the degree of its relevance to the particular fact in issue. There is no definition of ‘significant’ probative value as that phrase is used in s 97. In its context as I have outlined it, however, ‘significant’ probative value must mean something more than mere relevance but something less than a ‘substantial’ degree of relevance … One of the primary meanings of the adjective ‘significant’ is ‘important’, or ‘of consequence’. In my opinion, that is the sense in which it is used in s 97. To some extent, it seems to me, the significance of the probative value of the tendency evidence … must depend upon the nature of the fact in issue to which it is relevant and to the significance (or importance) which that evidence may have in establishing that fact.”Hunt CJ at CL in substance repeated that analysis in R v Lock (1997) 91 A Crim R 356 at 360-1. For a judge to decide that evidence has “significant probative value” is, like the decision about whether the evidence has “probative value” at all, a decision about the reasoning processes that are open to a jury. It has previously been observed that the generality with which a tendency is stated may be such that it provides a handicap to that evidence having “significant probative value”: Townsend v Townsend [2001] NSWCA 136 at [78] per Giles JA (with whom Hodgson JA agreed); Ibrahim v Pham [2007] NSWCA 215 at [264] per Campbell JA (with whom Hodgson and Santow JJA agreed). Section 101(2)Is Section 101(2) a Provision about Admissibility? It has been observed that, unlike sections 135 and 137 (which are cast in terms of whether evidence is admitted) section 101(2) uses different language, namely that evidence of a particular type “adduced by the prosecution cannot be used” against the defendant unless a particular condition is met. As Simpson J pointed out in R v Fletcher at 318-19 [46]-[48] treating section 101(2) literally, as a provision that limits the use that can be made of evidence that has already been adduced, presents insuperable problems in a jury trial. It has on previous occasions been regarded as an exclusionary rule: R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 at 713 [54]; R v Zhang [2005] NSWCCA 437; (2005) 227 ALR 311; 158 A Crim R 504 at [125]; R v GAC [2007] NSWCCA 315; (2007) 178 A Crim R 408 at 413 [18]. No submission has been made that we should not treat section 101(2) as an exclusionary rule of evidence. I propose to do so. Meaning of “Prejudicial Effect”