R v MM
[2000] NSWCCA 78
•24 May 2000
NEW SOUTH WALES CRIMINAL COURT OF APPEAL
CITATION: R. v. M. M. [2000] NSWCCA 78
FILE NUMBER(S):
60258/98
HEARING DATE(S): 20 March 2000
JUDGMENT DATE: 24/05/2000
PARTIES:
Regina (Respondent)
M.M. (Appellant)
JUDGMENT OF: Powell JA Hulme J Dowd J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 97/31/0438
LOWER COURT JUDICIAL OFFICER: Job DCJ
COUNSEL:
C. K. Maxwell QC - (Respondent)
I. H. McClintock - (Appellant)
SOLICITORS:
S.E. O'Connor, Solicitor for Public Prosecutions - (Respondent)
Heenan & Company (Newtown) - (Appellant)
CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - Sexual assault - Evidence - Cross-examination of complainant - Complainant accused of fabricating evidence - Complainant cross-examined to demonstrate motive - Complainant's evidence "why would I make a story up ..." and "why would I be sitting in this court room ... wasting all these people's time ..." - Accused not cross-examined to demonstrate absence of motive - What, if any, direction to jury called for or permissible.
CRIMINAL LAW AND PROCEDURE - Sexual assaults - Evidence - Similar facts - Admissibility - Relationship evidence - Tendency evidence - Prior sexual acts between complainant and accused - Evidence Act 1995 ss 97, 101 - What direction to jury as to use of evidence called for
LEGISLATION CITED:
DECISION:
Appeal allowed; Conviction and sentence quashed, New trial ordered.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
CCA 60258/98
DC 97/31/0438POWELL JA
HULME J
DOWD J24 May 2000
R. v. M.M.
JUDGMENT
POWELL JA: On 27 April 1998, the Appellant was indicted before Job DCJ at Newcastle District Court on the following charges:
Counts 1 to 4
Between 25 May 1983 and 25 May 1984 at Mona Vale did assault his son (ZM) and at the time of such assault did commit an act of indecency upon ZM, he being under the age of 16 years (Crimes Act 1900 s.61E(1)).
Count 5
Between 25 May 1983 and 25 May 1984 at Mona Vale did bugger ZM a male person (Crimes Act 1900 s.79).
Count 6
Between 25 May 1983 and 25 May 1984 at Mona Vale did assault ZM thereby occasioning to him actual bodily harm (Crimes Act 1900 s. 59).
Count 7
Between 25 May 1986 and 25 May 1987 at Terrey Hills did assault ZM and at the time of such assault did commit an act of indecency upon ZM he being under the age of 16 years and under the authority of the accused (Crimes Act 1900 s.61E(1A).
Count 8
Between 25 May 1987 and 25 May 1988 at Charlestown did have sexual intercourse with ZM a person then above the age of 10 years and under the age of 16 years and under the authority of the accused (Crimes Act 1900 s.66C(2)).
Count 9
Between 25 May 1987 and 25 May 1988 at Raymond Terrace did assault ZM and at the time of such assault did commit an act of indecency upon ZM he being under the age of 16 years and under the authority of the accused (Crimes Act 1900 s.61E(1A)).
Count 10
Between 25 May 1987 and 25 May 1988 at Kings Cross did incite ZM to an act of indecency with the accused ZM being under the age of 16 years and at the time of the assault under the authority of the accused (Crimes Act 1900 s.61E(2A)).
Count 11
Between 25 May 1987 and 25 May 1988 at Mona Vale did have sexual intercourse with ZM a person then above the age of 10 years and under the age of 16 years and under the authority of the accused (Crimes Act 1900 s.66C(2)).
Counts 12 and 13
Between 1 January 1989 and 1 May 1989 at Newcastle did have sexual intercourse with ZM a person then above the age of 10 years and under the age of 16 years and under the authority of the accused (Crimes Act 1900 s.66C(2)).
Count 14
Between 1 January 1989 and 31 December 1989 at Forster did have sexual intercourse with ZM a person then above the age of 10 years and under the age of 16 years and under the authority of the accused (Crimes Act 1900, s.66C(2)).
The Appellant pleaded not guilty to each of the charges and was tried before Job DCJ and a jury of 12.
On 1 May 1998, the jury returned a verdict of guilty on each count in the indictment.
On 25 June 1998, Job DCJ sentenced the Appellant as follows:
Counts 5, 11 to 14
Minimum term 6 years penal servitude to commence on 1 May 1998 and to expire on 30 April 2004.
Additional term 2 years to commence on 1 May 2004 and to expire on 30 April 2006.
Counts 1 to 4, 7 to 9
Fixed term of 3 years penal servitude to commence on 1 May 1998 and to expire on 30 April 2001.
Count 10
Fixed term of 2 years imprisonment to commence on 1 May 1998 and to expire on 30 April 2000.
Count 6
Fixed term of 2 years penal servitude to commence on 1 May 1998 and to expire on 30 April 2000
Before the Appellant was formally arraigned, and in the absence of the jury panel, counsel then appearing for the Appellant made what I can only describe as a very confused application, the nature of which is to be gleaned from the extracts from the transcript which I set out below. The transcript records that, after summarising, in a very brief way, the charges in the indictment, counsel continued (T.2):
“The particulars of the charges have not been supplied and they’re in general terms especially for the first six charges related to indecent assault. They’re generalised rather than specific as to time, date and place, the general place, they run a series and that’s the case for most of them, also the evidence seems to suggest that there will be a general allegation of ongoing sexual assault on a daily basis virtually for the whole period from 1983 through until 1989. It is my submission that while the indictment properly framed (sic) in the sense that there is one charge on each indictment, they’re brought in a way which does not allow the accused to meet the charges except in the most general way, that is, they have not, except perhaps in one or two instances, been particularised and furthermore that they are, by their nature leading tendency evidence of which we’d submit firstly that no notice has been give (sic), but even if there had been notice given that, in this instance, it shouldn’t be allowable to be led in terms of the general requirements of significant probative value and other matters that relate tendency (sic) evidence. It is our submission that if the Crown was (sic) to proceed it should select (sic) and particularise and run separate trials in respect to the different offences not just throw up a range of changes (sic) running over a long period without the particulars. The authority for that I cite the case of Esse (?) which is 1989 ALR at page 321.” (semble S. v. R. (1989) 89 ALR 321) “and the circumstances, the facts of that case are somewhat similar to the fact (sic) in this case and the Crown should elect which charges he is going to run on, particularise those charges and indeed, in our submission, run separate trials.”
and then, in relation to Job DCJ’s question as to whether or not there should be a separate trial in relation to each count, counsel continued (T.3):
“Not in relation to each count necessarily. In terms of certainly 25 May 1983 to 25 May 1984, it is my submission that indeed that those are so general as to warrant if he was to proceed on them, a stay application, just so general that they cannot be met and they are running tendency one on the other. The Crown is running a general tendency line throughout the whole in order to support the allegations without providing the required particulars in my respectful submission.”
The Crown Prosecutor then (T.3) handed to Job DCJ a folder which contained three statements which had been made by ZM and the transcript of the electronically recorded interview (“the ESIRP”) which had been held with the Appellant. That having been done, the Crown Prosecutor then took Job DCJ through the indictment and identified those passages in the statements which had been made by ZM which related to the particular charges in the indictment.
After the Crown Prosecutor had dealt with the first six counts in the indictment, Job DCJ indicated (t.7) that he proposed to allow those counts to be tried together.
That having been done, the Crown Prosecutor then took Job DCJ to the further counts in the indictment and identified those passages in the statements which had been made by ZM which related to each count.
The transcript (T. 8-9) then records the following interchange between the Appellant’s counsel and Job DCJ and the Crown Prosecutor:
“(APPELLANT’S COUNSEL): I would submit in terms of the linkage of those charges after charge 6 with those charges from 1 to 6 in terms of tendency and their use in my submission, other than the other ones I have made, is in terms of a separate trial if appropriate.
HIS HONOUR: Right.
(APPELLANT’S COUNSEL): On the tendency evidence, the use of tendency evidence and its clear application there
HIS HONOUR: Yes, well, Mr. Crown I assume you’ll be saying that this shows, what is sometimes called a guilty passion but often now called a sexual interest …
CROWN PROSECUTOR: Yes, your Honour.
HIS HONOUR: Between the accused and his son.
CROWN PROSECUTOR (sic): Which started when he was about, what say about nine years of age and the last instant when he was what?
CROWN PROSECUTOR: Fifteen and a bit.
HIS HONOUR: Yes.
CROWN PROSECUTOR: Your Honour, the complainant does talk about there being other incidents in that period of time and I do have available R.v. A.H. (?).” (semble R. v. A.H (1997) 42 NSWLR 702)
“HIS HONOUR: Yes I’ve read that. I propose to allow the trial to proceed on all fourteen counts, Mr. Crown.
………
HIS HONOUR: I’m satisfied the accused was served proper notice of these matters and that I regard the evidence as being wholly probative which would certainly outweigh any prejudicial value.”
Thereafter, the Appellant was formally arraigned (T.11-13) and, after he had entered a plea of not guilty to each of the charges in the indictment, the jury was empanelled and the trial proceeded.
Although it is a little out of the correct temporal order to record it at this stage, it should be noted that, during the course of the first day of the trial (T.25), the Appellant on the advice of his counsel made a number of formal admissions (Exhibit “A”). Those admissions included the following:
1. that ZM was born on 25 May 1974;
2.that the Appellant is the father of ZM;
3.that during 1983 ZM was in Year 3 at an identified primary school;
4.that ZM attended that primary school until the end of the school year in 1986 when he completed Year 6;
5.that during 1987 ZM was in Year 7 at an identified State high school;
6.that between 4 February and 1 July 1988 ZM was in Year 8 at an identified private high school;
7.that on 24 May 1988 the Appellant signed a contract for the purchase of premises in a suburb of Newcastle;
8.that the transfer of that property to the Appellant took place on 21 July 1988;
9.that the Brisbane Expo occurred during 1988;
10.that the Newcastle earthquake occurred on 28 December 1989.
Given the nature of the offences charged in Counts 1 to 4 and 7 to 14 of the indictment, the relevance and significance of the first two admitted facts is obvious. The relevance and significance of the balance of the admitted facts lies in the fact that, although ZM was unable to identify with precision the date or dates upon which one or other of the offences charged occurred, he was, by reference to one or other of the admitted facts, able to give some indication of the time at which, or the period during which, one or other of the offences charged was said to have occurred. Thus, the offences charged in Counts 1 to 6 were said to have occurred when ZM was 9 years of age, the offence charged in Count 7 was said to have occurred when ZM was in Year 6, and the offence charged in Count 8 was said to have occurred at a time when the Appellant was looking to purchase a home in Newcastle and on the day before he and ZM were shown the property in the suburb of Newcastle which the Appellant was later to buy.
The principal witness for the Crown was ZM who gave evidence as to events the subject of the counts in the indictment. Additional evidence was given by BM, the Appellant’s former wife and ZM’s mother, that evidence including evidence that as from the time when ZM was in Year 3 he regularly slept in the Appellant’s room, and that she had found a pornographic video and pornographic magazines in the Appellant’s bedroom, which video and magazines the Appellant admitted having shown to ZM. Further evidence as to the Appellant and ZM having slept in the same room was given by TH, ZM’s sister. Finally, evidence was given by the police officer who conducted the investigation into the complaints which were later made by ZM and who conducted the ERISP, the video tape of which, and the audio cassette relating to which, became Exhibit B, and the transcript of which became Exhibit C at the trial.
Although, as I have earlier recorded, ZM’s evidence was, for the most part, directed towards the offences the subject of the various charges, during the course of his evidence in chief he gave some evidence which went beyond the matters the subject of those charges. Thus, the transcript records the following evidence which was given after ZM had given evidence as to the matters the subject of Count 3 in the indictment:
“Q. Did you continue to go into his room of a night? A. After this happened?
Q. Yes? A. I had to sleep in his room all the time after all this.
Q. Why did you have to sleep in his room all the time after this? A. Because I wasn’t allowed to sleep in my own bed, every time I’d sleep in my own bed he’d come in and ask me to sleep in his and if I didn’t he’d get pretty angry. No angry but he’d start getting on my case and saying all this crap that he used to go on with.
………
Q. Can you remember any other instance that happened after that in the bedroom? A. Yes lots of times.” (T. 14-15)
The transcript also records the following, as the Crown Prosecutor was leading ZM to deal with the events the subject of Count 12 in the indictments:
“Q. Well during those holidays did something happen between you and your father? A. Yes.
Q. What happened between you and your father? A. These things happened to me that often I’m not really sure what you’re talking about.” (T.42)
It should be noted, here, that on neither of the occasions to which I have just referred did counsel then appearing for the Appellant object to the evidence given by ZM, or seek to have it struck out of the transcript, or seek to have Job DCJ then instruct the jury as to the basis on which such evidence might be admissible, or as to the use to which they might legitimately put such evidence.
ZM was extensively cross-examined by counsel then appearing for the Appellant - the transcript of the cross-examination extends to some 67 pages. The cross-examination was not directed merely to the detail of the evidence given by ZM as to the various offences charged in the indictment. On the contrary, it is clear from the cross-examination that counsel then appearing for the Appellant had made a deliberate election to charge ZM with having fabricated his evidence and to seek to obtain by cross-examination evidence as to the relationship between ZM and the Appellant and, in particular, evidence as to ZM’s feelings toward the Appellant which would enable counsel to seek to persuade the jury that ZM’s feelings towards the Appellant were such as to cause ZM to lie.
The fact that counsel then appearing for the Appellant adopted the latter course led to a number of exchanges of which the following are examples:
“Q. Because you were making up a story? A. No I’m not.
Q: You see? And the reason you were making up a … A: Excuse me. Why should I make a story up, waste all this time for taxpayers’ money and come here and accuse - if he was such a good father, why would I be sitting here at this time mate? You tell me that.” (T.56)
and later:
“Q. When you were working with your father, at the MSB right? Remember that? A. Yeah.
Q. Your mother would also work there wouldn’t she? A. Yes.
Q. And your sister would also work there? A. At times, yeah.
Q. And indeed it was a family - the family worked quite hard didn’t they? A. My parents did.
Q. Yeah, and you worked quite hard too, didn’t you? A. No.
Q. You didn’t want to work? A. No, ‘cause I was a kid, I wanted to have a normal life like every other kid.
Q. And indeed that’s one reason why you disliked your father isn’t it? A. Pardon?
Q. That’s another reason why you disliked your father? A. Yeah I dislike him for not being a normal human being and raising me like a normal parent would.” (T.57-58)
and later again:
“Q. But you see in respect of those words you’re making it up? A. No I’m not.
Q. It’s a recent invention? A. I could prove it mate.” (T.72)
and later again:
“Q. And you didn’t like it when he asked you to work with him did you? A. No, what kid likes to work, you tell me? Would you work when you were 12 and you were supposed to go to school and study? How are you supposed to study when you’ve got to work all night long and do you (sic) schoolwork.
Q. And you were quite bitter about that weren’t you. A. Yes I was.
Q. And then you ran away from home? A. Yes, because he sexually abused me.
Q. And your running away from home had nothing to do with sexual abuse by your father because it didn’t happen? A. It did happen, sorry sir. I wouldn’t be sitting in this court room wasting my time, I’ve nothing to gain out of this, sitting here accusing my father. If he was such a good father why would I be sitting in this room, you know, wasting all these people’s time? You tell me that. What would I get out of this? What can I get out of this? Nothing. All I want is justice served for what he done to me all them years.
Q. What I’m suggesting to you is that you’re still bitter about your father? A. I’m bitter for what he has done to me. Not even an animal does that to their own child.
Q. You’re bitter about your father but it has nothing to do with sexual abuse because he didn’t sexually abuse you …? A. He did sexually abuse me.” (T.115-116)
Again, it is not without point to note that, notwithstanding the first of the grounds of appeal which have been taken on behalf of the Appellant, no application was made to Job DCJ to have struck from the transcript ZM’s answers “Why would I make a story up waste all this time for taxpayers’ money” and “I wouldn’t be sitting in this court wasting my time I’ve got nothing to gain out of this, sitting her accusing my father. If he were such a good father why would I be sitting in this court room you know wasting all these people’s time”.
In the course of ZM’s re-examination (T. 121-122), the following occurred:
“Q. At the time you first went to the police officers was there anything particular happening that sent you off to the police station? A. Yes. I rang up Operation Paradox at first when that started and no-one got back to me. Then I seen a counsellor at the Gold Coast Youth Service for people over - under 24 and I seen them and I was talking to a counsellor there and she’s the one who helped the proceed in all this that’s going on right now.
Q. Just so everyone knows what you’re talking about, what is Operation Paradox, or what do you understand … ? A. Oh it’s to, where people, young people can ring up and inform on like sex, bad sexual behaviour that’s happened to them or like teachers or their parents, stuff like that.
Q. When you say you rang up, who did you ring up, do you know? A. I rang up an 1800 number.
Q. Do you know who runs Operation Paradox? A. I think it was the police. There’s - I’d alike to say there’s also more charges up in Queensland to be dealt with, with this.”
The last answer given led counsel then appearing for the Appellant to apply to Job DCJ to have the jury discharged upon the ground that that answer was non-responsive and highly prejudicial (T.123).
The transcript (T. 126-128) records the following as part of the discussion which took place on that application:
“HIS HONOUR: I think we sometimes treat juries as if they have no intelligence at times and I think it’s quite wrong. I think the matter has to be clarified in some way. He did use the word (sic) ‘charges in Queensland still to be dealt with’. That may be his understanding of when he talks about charges, his charges, but I think the matter ought to be clarified and I’d ask the Crown how he proposes to clarify it and you can listen to what the Crown has to say, what do you want to do Mr. Crown?
CROWN PROSECUTOR: What I want to do your Honour is firstly clarify what he referred to as charges in Queensland were allegations that he has relating to the same period of time of similar conduct by his father. Secondly, to then have him say that he has not - he has spoken to the Queensland police, that he has not made a formal statement and that as far as - and leave it at that your Honour. And that his father has not been charged formally with any offences in Queensland.
HIS HONOUR: I think you’re going a little bit too far. I think it would perhaps would be sufficient if you got them in that, while he’s talking about charges in Queensland, what he says were matters which took place in Queensland or similar nature.
(APPELLANT’S COUNSEL) If he goes into the area of having spoken to the Queensland Police, we cannot possibly …
HIS HONOUR: Exactly, that’s what I’m trying to stop the Crown from doing.
CROWN PROSECUTOR: I’ll leave that alone your Honour.
(APPELLANT’S COUNSEL): But the concession also from the Crown that no charges are pending is important in my respectful submission.
CROWN PROSECUTOR: I’ll get him to agree that no formal proceedings have commenced in Queensland.
(APPELLANT’S COUNSEL): Well that’s …
(APPELLANT’S COUNSEL (sic)): Well I’ll make that concession.
HIS HONOUR: Yes I think you could make that concession.
(APPELLANT’S COUNSEL): That formal proceedings are somewhat different to charges.
HIS HONOUR: That’s correct, I think it would be reasonable to say that, get him to explain that what he meant by charges in Queensland were allegations which he made of a similar nature here and then the Crown could see (sic) that there are no charges pending in Queensland.
(APPELLANT’S COUNSEL): That would …
HIS HONOUR: Does that satisfy both of you? It probably won’t completely satisfy (Appellant’s counsel) but I don’t propose to discharge the jury. I don’t want it undermined any more.
(APPELLANT’S COUNSEL): Yes certainly but I accept what Your Honour’s saying. The only thing that would satisfy me of course is the discharge of the jury…”
The transcript (T. 131) also records the following, which occurred shortly after the passage to which I have just referred:
“CROWN PROSECUTOR: Q. (ZM), a short while ago in answering the question that I asked you, you said that there are other charges pending in Queensland? A. That’s right.
Q. Just listen very carefully and I want you to answer this question ‘yes’ or ‘no’. A. Okay.
Q. When you referred to charges in Queensland were you referring to allegations by you of similar conduct by your father against you? A. That’s right, yes.
Q. That conduct is alleged to have occurred during the same period as we’ve been talking about in this court room? A. That’s right.
Q. That’s what you meant by ‘charges’? A. Yes.
WITNESS RETIRED
CROWN PROSECUTOR: The Crown concedes there are at this stage no actual charges pending in Queensland.
HIS HONOUR: Well there’s been no charge made by the Queensland police against the accused?
CROWN PROSECUTOR: That’s right, yes your Honour.”
At the commencement of his summing-up, Job DCJ, as might have been expected, gave a number of what one might call the expected directions.
When he came to the question of onus of proof, his Honour said (PP, 5-6):
“Members of the jury, the next important direction of law I give you concerns what is called ‘the onus of proof’. Both counsel have addressed you on that, but, nevertheless, I am obliged to give you these directions. This is a criminal trial of a serious nature. The burden of proof of the guilt of the accused is placed firmly upon the Crown. That onus remains upon the Crown in relation to every issue in the case. Now that does not mean that the Crown has to prove the truth of every assertion of every Crown witness.
What the Crown has to prove beyond reasonable doubt is each ingredient in the various charges. There is no onus of proof on the accused at all. It is not for him to establish his innocence, but it is for the Crown to prove his guilt and prove it beyond reasonable doubt. It is and always has been a fundamentally important part of our system of justice that people tried in these courts are presumed to be innocent of the charge or charges alleged against them until a jury of their fellow citizens has been satisfied by the Crown beyond reasonable doubt that they are guilty of those crimes. The accused is entitled to the benefit of any reasonable doubt in your minds.
You do not have to be satisfied that an accused is innocent before you acquit him. If you are unable to decide where the truth lies, even though you feel that he may be guilty, if you have a reasonable doubt about it, you must find him not guilty. I should warn you that suspicion is not a substitute for proof beyond reasonable doubt. Suspicion must play no part in your function as judges of the facts. Not even the gravest suspicion will suffice as proof beyond reasonable doubt.
Now as you were told by the Crown, I think even in his opening, there is one witness who is essential to the proof of the Crown case and that is still the situation. I think he also told you that in his final address. That is, of course, the young man (ZM). You should, therefore, examine and scrutinise his evidence with great care before you decide that a verdict of guilty should be brought in, if at all, and should only find the accused guilty if you are satisfied beyond reasonable doubt the truth of the evidence of that witness.
Now the fact that I have given you that warning does not mean that I have formed any views as to the honesty or reliability of that witness. It is a warning that would be given in every case where the Crown case depends upon the evidence of one witness.”
A little later, Job DCJ turned to the approach to be taken by the jury to the times which had passed between the occurrence of the matters of which ZM had given evidence and the time when, in 1996, ZM had gone to the police and made his statement. In this regard, his Honour said (pp. 8-9)
“Members of the jury, the young man concerned was between nine and perhaps fifteen at the latest when he left home and the charges that the Crown bring are within those periods of time. He is now, I think the Crown said, twenty-four years of age, he went to the police and made his statement in 1996, so he’s giving evidence about matters that took place some time ago. He is also giving evidence about matters when he was very much younger. It started off, he said, these events, when he was nine.
Members of the jury, I am accordingly obliged to warn you that the evidence of a person giving evidence after that period of time being a young man, it may be unreliable. Now whether it is unreliable, of course, is a matter for you. But the matters that may cause it to be unreliable include the gaps of time that have passed and the fact he’s giving evidence about matters when he was nine to fifteen years of age. Consequently, I give you this warning, that you will need to use caution in determining whether you accept that evidence and the weight that you should give to it.
………
It will be a matter too, even though I have given you that warning and the fact it is only one witness, you should be looking at the evidence as to whether there is material which supports what the young man said. And you have heard the Crown, he has submitted to you that there is evidence, there is material in the case which does support the young man’s evidence. That again is a matter which will be entirely for you and I will come to that later on.”
Following the morning adjournment, Job DCJ then turned to deal with the question of the use which the jury might make of the evidence of what might be called “the wider sexual history”. In this regard, his Honour said (pp. 11-13):
“Members of the jury, just before I come to the ingredients, I did say to you that the young man (ZM) told of constant sexual abuse over a lengthy period of time. Now I also told you that the Crown must identify specific acts and occasions for each count and it must prove those particular acts and not some other acts on other occasions. That is fundamental to the case. Now that does not mean that you may not take into account some wider sexual history, if it is proved; that is, the evidence of other acts of a sexual nature between the accused and the complainant. Now you do not do that in order to substitute those other acts or occasions for those charged.
The history of a wider series of other sexual offence is led for a different purpose altogether. It is important for you to understand what that purpose is. It is to place the evidence of the particular acts which are charged in the indictment into a true and realistic context and where appropriate, to show the existence of what could be called a guilty passion or sexual interest on the part of the accused towards the complainant. Otherwise, a jury such as yourself may wonder as to the likelihood of apparently isolated acts occurring suddenly without any reasons, without any reason without being repeated.
Now if a complainant gave evidence of isolated acts of that kind, you would be entitled to say to yourselves as people of common sense, well really it is very odd for there to be such isolated acts between these persons, which were not repeated or which had no precursor. For that reason you might have cause to entertain some doubt as to the likelihood or accuracy of the witness.
If however the particular acts charged are placed in the wider context, that is a wider context of an on-going history, and show or tend to show the existence of guilty passion or sexual interest on the part of the accused for the complainant, then that curious feature would disappear.
Now it is for that reason that the law allows the history of a wider sexual activity to be proved. This is to avoid artificiality or unreality. Now for one or two instances to be artificially isolated and selected for a witness to be confined to those, would make it very difficult for the complainant to proceed intelligently with the evidence. However, I emphasise to you again you must not substitute evidence of any other acts for the specific acts charged. You must not reason on a basis, well this accused may have done some wrong things on other occasions relating to the complainant, and therefore we will convict him on the counts that are charged. The Crown must prove the particular acts in the indictment beyond reasonable doubt. You have the wider history merely to show or to place the evidence into context, and if you think it is appropriate, to show the existence of a strong and guilty passion or sexual interest in the complainant by the accused.” (my emphasis)
Job DCJ then turned to deal with the various charges in the indictment dealing, in the first instance, with the elements to be established in relation to each of those charges, and then dealing with the evidence which had been tendered, on the one hand, by the Crown and, on the other, by the Appellant in respect of each of those charges. In the early stages of his cross-examination of ZM, counsel then appearing for the Appellant had pressed ZM with his apparent failure to complain earlier of the Appellant’s alleged conduct toward him and, as I have earlier recorded, sought to establish that, because of ZM’s resentment of the Appellant’s general conduct toward him, he (ZM) had fabricated his complaints against the Appellant. It is against that background that Job DCJ said, in the course of his summing-up (pp. 31-34):
“He went down to Sydney and gave descriptions in Kings Cross, Manly and was asked, ‘Have you ever told your mother about any of these incidents’ He said ‘No’. He said ‘I didn’t tell no one’. Said ‘Why didn’t you tell her about the first one?’ He said ‘I don’t know, it was just embarrassing. I didn’t know how she’d take it, I was just a kid then, I didn’t know who to tell like’. He did say later on that he mentioned it to a prostitute he had slept with on his birthday when his mother had given him some money. That he met her and he told her something about it. I think it words something like ‘My father’s sicko, he makes me do sick things’, words to that effect.
Later one he said when he went away he talked to a few people, like a Community Service Centre, either the Catholic Church or the Community Centre. And members of the jury he obviously went to the police, as we know, otherwise none of us would be here about this now, and made statements to the police.
Members of the jury, he did not make what is called a complaint until many years later. He said the reason for that was because first of all was (sic) under the authority of his father and he did not know what to do about it, but he ran away he said he got onto the drugs, got into rehabilitation at one stage and then he told somebody about it, was asking (sic) what he was doing and he told them what had happened with his father, and they told him he would have to clean himself up first before he did anything about it.
Members of the jury, it is a matter for you as to what you make of the fact that he did not complain but it is a matter which you should take into account in assessing his credibility that he did not make a complaint until some considerable time later and he did not tell it to anybody in authority until as I said, many, many years later. That is a matter which you must take into account in relation to his credibility.
So what the defence puts to you is that the delay is inconsistent with those things happening. Members of the jury I am also required to warn you that the absence of a complaint or delaying complaining does not necessarily indicate that the allegation that the offence was committed was false. I am also required to inform you that there may be good reason why a victim of sexual assault may hesitate in making or may refrain from making a complaint about this assault. Now you may think that that is all perfectly obvious. There may be good reasons to delay in complaining or for not complaining at all.
The question for you to consider is whether in this case, the complaint, well there was no real complaint, the absence of complaint is consistent with the allegations or whether they throw doubt upon those allegations. What the young man said well, it was my father, and then he ran away and did not do anything about it and he said, I think in evidence, that he was also reading about sexual assaults and he decided then to complain and he rang up I think Operation Paradox and then later on he did.
Members of the jury, you were in Court. You saw him give his evidence and it is for you to judge him. That is what I told you at the beginning of the trial. It is for you to look at the witnesses and assess their evidence. He was cross-examined about that, that he had not gone to the police. He was asked why not? One of his answers was ‘Well I was sort of embarrassed. I didn’t want to go up to some stranger and tell them what happened to me?’ He said ‘Well there was a prostitute’. ‘Yes I know’. ‘She was a stranger.’ ‘Yes’. Well it is for you to consider whether that is a matter as to telling a prostitute would be the same as going to somebody in authority.
And you also heard the Crown address you on this. The complainant said ‘Why would I make a story up. Waste all this time for taxpayers money and come here and accuse if he was such a good father. Why would I be sitting here at this time mate, you tell me’. Well you have heard the criticism of those answers made by (Appellant’s counsel) as the passion that was involved. And I think it came out perfectly clear to you that he certainly hates his father.
The young man was cross-examined by (Appellant’s counsel) about his father trying to do the best for him at school but he also made him work, going to the restaurant up till - I think the young man said about 11 o’clock at night. Then when he was at Newcastle working with him at night time in the cleaning business, and the young man said he hated it. Well members of the jury, these are factual matters for you to consider and you will give (Appellant’s counsel’s) submissions the weight you consider that they warrant. That if he was doing poorly at school, if it be the case, and he said it was, the fact that he was going to school and staying up until 11 o’clock at night when aged nine years of age, you perhaps would not think he would be doing particularly well at school.
However, it is quite clear that (the Appellant) is from a different culture, as you have heard, from us. He is obviously a man you have heard who has worked very hard. And at one stage he did make a lot of money. He also, at Newcastle, again when the boy was still at school, he was taking him at night time to do the cleaning and the boy disliked that. And the submission to you from (Appellant’s counsel) is that you would take those into account because he hated his father so much, that he has made up his mind to make these false allegations. You remember it was, put quite passionately, he said he wants to see him, if you like, pay for what he has done because he said ‘He has been sexually abusing me all these years’.
Of course members of the jury, it is a matter for you to decide but if you are satisfied beyond reasonable doubt that he commit these particular offences, it would be a matter which you could understand the person would be very much aggrieved towards his father.”
Later, when dealing with the Appellant’s case, Job DCJ, at the request of counsel for the Appellant, who had sought a direction as to “the difficulty in testing the evidence because of the delay” said (p. 42):
“Now I did give you some directions about the delay in the complaint. The complainant has given evidence about matters which took place from 1983 to about 1989 so that is some time ago. And the complaints were not brought to the notice of the authority or any complaint was brought to the notice of the authorities until two years ago. And it is fair for you to take into account the matters I told you earlier. But it would also mean that there would be some difficulty in the accused being able to think back as to exactly where he was at the various times these things have happened and perhaps even for the defence to be able to cross-examine the young man about these matters because of their antiquity.
In this case, what the Crown did call was evidence of things happening on specific occasions and not necessarily able to give the date but lining it up with certain events taking place. Members of the jury of course the accused might find some difficulty in knowing where he was maybe at some particular stage and you must take that into account. My understanding of this and it is no doubt perfectly clear, the accused has denied that he ever sexually interfered with his son at all. Said it just did not happen. So anyhow, they are matters but nevertheless you must take those matters into consideration.”
When he came to deal with the case put forward by the Appellant, Job DCJ returned to the question of onus. In this regard he said (pp. 38-39):
“Now the accused has given evidence on oath. As you have been told he was not obliged to do that. He could have said nothing at all because as I said earlier, it is not for the accused to prove his innocence but for the Crown to prove his guilt beyond reasonable doubt. But by giving evidence the accused became a witness like all the other witnesses. Exactly the same principles apply in evaluating his truthfulness and reliability as apply to the other witnesses.
I do remind you that by giving evidence the accused in no way altered the fundamental principle as to where the onus of proof lies. It is not for the accused to satisfy you of his innocence, it is for the Crown to satisfy you of his guilty and to do beyond reasonable doubt. “
Then, having dealt briefly with the accused’s evidence - which was in substance a categorical denial that he had ever sexually abused ZM - Job DCJ drew attention to the evidence which had been given as to the accused’s good character and directed the jury (p. 41) that that fact might be taken into account when they came to assess the credibility of the accused’s evidence and, as well, in determining whether or not he committed the offences alleged against him.
Having then inquired whether either the Crown Prosecutor the Appellant’s then counsel sought any further directions as to the facts or as to the law, and having received a negative reply, Job DCJ concluded (p.43):
“Well members of the jury, I have been much faster than I thought I would be there. The accused said that none of these things happened so you cannot elaborate on that much more than that, he just flatly denies. Remember it is for the Crown to prove to you beyond reasonable doubt that they did and you must look at the fourteen specific charges and look at all those separately.”
As I have earlier - para. 3 (above) - recorded, the jury returned a verdict of guilty on each count in the indictment, following which Job DCJ imposed on the Appellant the sentences which I have earlier - para. 4 (above) - recorded.
On 7 July 1998, the Appellant gave notice of his wish to appeal against both his conviction and his sentence.
On 18 February 2000 the Appellant gave notice of his wish to rely on the following grounds of appeal:
1.Ground 1
1.1The trial miscarried due to:
(i)the introduction into the trial of the question of whether there was a motive in the complainant to lie about the allegations;
(ii)the failure of the learned trial judge properly to direct the jury in relation to this issue.
1.2The learned trial judge misdirected the jury in relation to the motive of the complainant to lie.
1.3The learned trial judge failed to direct the jury that it was not for the accused to prove a motive in the complainant to lie.
2 Count 2
2.1The learned trial judge erred in admitting the evidence of other sexual acts between the complainant and the appellant.
2.2The learned trial judge erred in his direction to the jury in relation to the evidence of other sexual acts.
3. Ground 3
3.1The learned trial Judge erred in failing to discharge the jury on the application of defence counsel.
The appeal came on for hearing on 20 March 2000, on which day Mr. I. H. McClintock appeared for the Appellant, while Mr. C.K. Maxwell QC appeared for the Crown.
I turn to deal with the various grounds of appeal which have been raised.
MOTIVE TO LIE
It is to be noted, first, that, in contrast to the situation which arose in some of the authorities (see, for example, R. v. Palmer (1988) 193 CLR 1; R. v. AH (1987) 42 NSWLR 701), the question “why should the Complainant lie” was not raised by the Crown Prosecutor either in the course of cross-examination of the Appellant (R. v. Palmer (1997-1998) 193 CLR 1) or in the course of final address (R. v. E. (1996) 39 NSWLR 450); R. v. Jovanovic (1997) 42 NSWLR 520; R. v. AH (1997) 42 NSWLR 702) nor was it, as was the case in R. v. F (1995) 83 A Crim R 502, a case in which the trial judge described as “the central theme” of the case the question “why would the complainant lie”. Further, it is to be recalled that, virtually from the outset of his cross-examination of ZM, the Appellant’s then counsel accused ZM of having fabricated his evidence and set out to demonstrate - and, one might observe, did succeed in demonstrating - both ZM’s extremely antipathy to the Appellant and many matters which could have founded that antipathy, thus providing himself with a firm basis upon which, in the course of his final submissions, to seek to persuade the jury of the unacceptability of ZM’s evidence.
All these matters notwithstanding, it was Mr. McClintock’s submission that, except in those cases in which it can be said that the question “why should the complainant lie” arises in a peripheral fashion, a trial judge should always give a direction of the type suggested by Sperling J in R. v. Jovanovic supra at 541-542 where his Honour said:
“DRAFT DIRECTIONS:
The Crown has submitted that a necessary corollary of the approach in this Judgment would be that, in every case, a trial judge would be bound to give directions to the jury as to how they should deal with the natural question: why would the complainant have made up these serious allegations? That may be so. I do not think the point detracts from the approach to the problem in R. v. E, in R v. Uhrig or in this judgment. But I am happy to take the point head on. If juries require assistance on this point, in order to avoid error in legal principle, then assistance should be provided.
Guidance may be obtained from the way the courts have dealt with a cognate problem, the Jones v. Dunkel situation. A witness one would expect to be called to answer the Crown case, if the Crown case were not true, is not called. (It is often the accused who is not called.) What inferences may be drawn from this election? Not that the Crown case is true, although that would be the every day conclusion as a matter of commonsense. Directions have been devised to deal with this problem. Warnings have also been given about comments which should not be made: see R. v. OGD. Having to deal with every day methods of thinking which run counter to the necessary rigour of a criminal trial is not novel, as was illustrated by reference to other situations in R. v. E (at 645) and is again illustrated by R v. OGD.
Whilst it may not be necessary to give a particular direction in every case involving complainant evidence, the following would, in my view, be a suitable direction:
‘It would be natural to ask yourselves why the complainant, X, would make up such serious allegations against the accused. I give you the following directions about that question:
(1)As you have been told, the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be acquitted. If the case turns of the evidence of X, you must be satisfied beyond reasonable doubt that X has told the truth.
(2)As you have been told, it is your duty to decide whether you accept the evidence of a witness in whole or in part. X is no exception to that.
(3)It would be wrong to conclude that X is telling the truth because there is no apparent reason, in your view, for X to lie. People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not. You cannot be satisfied that X is telling the truth merely because there is no apparent reason for X to have made up these allegations. There might be a reason for X to be untruthful that nobody knows about.’
I provide the following draft direction, not because I am satisfied that such a direction is necessarily required in every case such as the present case, but in order to answer the suggestion that the approach in this Judgment leads in some way to an unmanageable situation in the context of a criminal trial.”
I am unable to accept Mr. McClintock’s submission in this respect, which submission, as it seems to me, is not supported by the authorities.
In the joint Judgment of Brennan CJ, Gaudron and Gummow JJ in Palmer v. R. supra the following passages occur:
“Cross-examination is permissible and evidence is admissible to establish that a complainant has a motive to make and persist in false allegations.
………
In R. v. Uhrig Hunt CJ at CL said:
‘A motive to lie where it does exist is a very relevant factor in judging a witness’s credit. It will almost inevitably have substantial probative value in relation to the issue of credit, and so will pass the test posed by s.103 of the Evidence Act 1995 for admissibility. If the alleged motive is denied by the witness, other evidence may be lead to rebut the denial in accordance with s.106.’
It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant’s credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused’s lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.
If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has motive to lie, the cross-examination would focus the jury’s attention on irrelevancies, especially when the case is ‘oath against oath’. In such a case to ask an accused the question: ‘Why should the complainant lie?’ is to invite the jury to accept the complainant’s evidence unless some positive answer to that question is given by the accused.”
and later:
“Nevertheless, as the question is irrelevant to any issue in the case, it ought not to be asked. As Hunt CJ at CL pointed out in R. v. Uhrig the question ‘Why would the witness lie?’
‘invites the jury to speculate … to the conclusion that, unless they are satisfied by the accused that the witness has a motive to lie they should accept the evidence of that witness and to convict. In my view, that danger of such illegitimate speculation is a sufficient reason for saying that the rhetorical question should not be raised in such a case.’”
and later again:
“It is necessary to distinguish between cross-examination of a witness as to the motive of that witness to lie and cross-examination of another witness designed to show that that witness does not know of any fact from which to infer that the first witness had a motive to lie. The distinction was referred to in the context of a criminal trial by Hunt CJ at CL in another passage from his Judgment in Uhrig:
‘What this Court said in R v. F and in R v. E. should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so not withstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and the emphasise that the Crown must still satisfy them that the witness is telling the truth. I believe that it is necessary for such a distinction to be stated expressly, in order to avoid skilful advocates attempting to persuade trial judges that a necessary consequence of this Court’s decision in those two cases is that arguments relating to a motive to lie are excluded in every case. That is not a necessary consequence at all.’
The present case is, as it seems to me, one which is far removed from those which have been condemned in the authorities to which I have referred, first, since as I have already noted, the Crown Prosecutor did not seek to cross-examine the accused on the subject; second, the defence was conducted on the basis, inter alia, that ZM had a motive to lie; and, third, since, as is clear from that part of his summing-up which I have recorded above (see para. 27) Job DCJ’s reference to the question was little more than a passing reference to that part of ZM’s cross-examination where he (ZM) posed the question in an unresponsive answer to the Appellant’s then counsel and did not amount to any recommendation of the question to the jury as a legitimate process of reasoning to be adopted by them. I would therefore reject this ground of appeal.
RELATIONSHIP EVIDENCE/TENDENCY EVIDENCE
In the absence of the statements which the Crown Prosecutor made available to Job DCJ at the time at which counsel then appearing for the Appellant made the application to which I have earlier (see para. 5 (above)) referred, it is not possible to know to what matters, other than those relating directly to the offences charged, his Honour’s attention was directed, nor is it possible to know for what purpose any matters, other than those relating to the offences charged, were included in those statements. If the evidence which was in fact given by ZM on the hearing before Job DCJ is to provide any guide, then the only material contained in those statements which went to what might be called a general history of molestation and, thus, went beyond the offences charged, was material of the type which I have recorded in paras. 13-14 above.
Whatever may have been the material contained in those statements, the passage from the discussion which occurred before the Appellant was arraigned which I have set out in paragraph 9 (above) would tend to indicate that the evidence which the Crown Prosecutor proposed to lead on the hearing was intended to be relied on by him not merely to establish the offences charged but also to demonstrate that the Appellant was a person who had a propensity for committing offences of the type charged. Thus, in the passage to which I have referred, Job DCJ said: “I assume you’ll be saying that this shows what is sometimes called a guilty passion”, a suggestion to which the Crown Prosecutor assented. Further, his Honour’s statement that he was satisfied that the Appellant had been served with proper notice and that he regarded the evidence as being wholly (quaere highly) probative and such as substantially to outweigh any prejudicial effect it might have clearly indicate that his Honour had in mind the provisions of s.97(1)(a) and 101(2) of the Evidence Act 1995.
It is the fact that, to the extent to which it went beyond establishing the offences charged, the evidence led by the Crown Prosecutor on the hearing was directed toward proving both the relationship between ZM and the Appellant and, as well, that the Appellant was a person who had a propensity to commit offences of the type charged, and the direction which Job DCJ gave to the jury as to the use of that evidence which forms the basis for the second ground of appeal.
In R. v. Beserick - an appeal heard by this Court prior to the coming into operation of the provisions of the Evidence Act 1995 - the Court was concerned (inter alia) to deal with the bases upon which, in cases of the type with which we are now concerned to deal, evidence of sexual activity between the complainant and the accused other than that which is the subject of the charge or charges in question, was admissible. In the course of his Judgment, Hunt CJ at CL - with whom Finlay J and Levine J agreed - said supra at 515-516:
“The true bases for the admissibility of evidence of sexual activity between the complainant and the accused other than that which is the subject of the charge were analysed in some detail most recently by this Court in R. v. Wickham (Court of Criminal Appeal, 17 December 1991, unreported). The evidence is admissible, first, in order to establish a sexual relationship which makes the complainant’s allegation more likely to be true. The ‘guilty passion’ of the adult for the child which such conduct shows may well make more credible the complainant’s evidence that the sexual activity took place upon the particular occasion which is the subject of the charge. In other words, it makes it more likely that the offence charged was in fact committed: Martin v. Osborne (1936) 55 CLR 367 and 376 (Dixon J); Harriman v. R. (1989) 167 CLR 590 at 631 (McHugh J); B. v. R. (1992) 175 CLR 559, 602, 609, 610-11, 618). Secondly, the evidence is admissible in order to place the evidence of the offence charged into a true and realistic context, in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any apparent reason. R. v. Wickham provides a very good example of how the act of sexual intercourse which was the subject of the charge would have appeared to be astonishing, and almost unbelievable, if the jury had not been made aware of the existing sexual relationship between the adult accused and the child complainant. Such evidence provides the key to an assessment of the relationship between them and, as such, constitutes part of the essential background against which the evidence of the complainant and the version of the accused necessarily falls to be evaluated: B. v. R (at 610): see also (at 602-603; 605).
Evidence of sexual activity between the complainant and the accused other than that which is the subject of the charge is nevertheless frequently of a highly prejudicial nature, in that in tends to show a propensity on the part of the accused to commit crimes of the nature charged or crimes of a similar nature. Its admissibility has therefore always been subject to the well known discretion in criminal trials to exclude evidence where its probative value is outweighed by its prejudicial effect: R. v. Christie [1914] AC 545 at 559, 564; Noor Mohamed v. The King [1949] AC 182 at 192; Driscoll v. R. (1977) 137 CLR at 541; Phillips v. R. (1985) 159 CLR 45 at 51; B. v. R. (at 602, 608, 618). I shall return to the exercise of that discretion later. If the judge declines to exercise that discretion to exclude the evidence of such other sexual activity an explanation should invariably be given to the jury - as soon as the first of that evidence is given and, if necessary, again in the summing up - as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which the subject of the offence charged.
Neither the relevance of evidence of sexual activity other than that which is the subject of the offence charged (in those cases where that offence is alleged by the complainant to be part of a wider pattern of behaviour on the part of the accused) nor, despite its suggestion of propensity, its admissibility (subject only to the discretion to which I have referred) can now be disputed.”
Although in the course of their separate Judgments in Gipp v. R. (1998) 194 CLR 106 Gaudron J at 111-113 and Callinan J at 168-169 expressed the view that general evidence of sexual abuse on occasions other than those charged is, in the absence of conduct on the part of the defence which raises an issue to which prior abuse is relevant, not admissible unless it has a special probative value which renders it admissible as propensity evidence, that view does not appear yet to command a majority in the High Court. Thus, in their joint dissenting Judgment Gipp v. R., McHugh and Hayne JJ wrote at 131-132:
“The trial judge did not direct the jury that, if they accepted that the appellant had sexually interfered with the complainant on occasions other than those charged, they could use that fact to infer that the appellant had committed the offences which the subject of the five counts left to them. The evidence tendered was general in its nature and, as the above passage makes clear, was admitted for the limited purpose of making the circumstances of the specific offences more intelligible. It was admissible because it was evidence ‘as to acts so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances’. Counsel might have objected to the generality of the evidence and insisted that the complainant should recite in detail, so far as she could, the times, places and manner of these sexual interferences. But he preferred - what seems to us to have been the better forensic choice - that the evidence of the sexual history should be given shortly and without prejudicial detail.
If the evidence of sexual history had been directed to specific incidents, although not the subject of charges, the learned judge would have been entitled to direct the jury that if they found one or more of those incidents proved, they could use such a finding or findings as proof of a ‘guilty passion’ in support of the charges in the indictment. In that event, it would have been necessary to direct the jury that these incidents as well as the charges have to be proved beyond reasonable doubt.
No doubt the evidence of general behaviour, if accepted, proved the commission of other criminal acts. But it was not tendered as propensity evidence. If the evidence had been tendered to prove propensity, it would have required careful direction in accordance with the principles emphasised by this Court on numerous occasions in recent years. Moreover, as BRS v. R shows, if evidence admitted for reasons other than propensity in facts reveals a criminal or reprehensible propensity on the part of the accused, a trial judge must carefully direct the jury as to the use which they can make of the evidence. In BRS McHugh J pointed out:
‘If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused’s propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence.’”
In the circumstances, it seems to me to be appropriate to proceed on the basis that, in a case such as this, it is open to the Crown to lead evidence, even of a generalised nature, directed towards establishing what was the relationship between the complainant and the accused.
The passage from the discussion which occurred prior to the Appellant being arraigned which I have set out earlier (para. 9 (above)) and the passage from the summing-up by Job DCJ which I have set out in para. 26 (above) make it clear, however, that the material as to the relationship between ZM and the Appellant was tendered on both bases, that is, as providing evidence of the context in which the offences charged were said to have occurred and, as well, “if (the jury thought) it appropriate” establishing a propensity on the part of the Appellant to commit offences of the type charged and thus making it more likely that the offences charged were in fact committed.
This being so, it seems to me, that it was incumbent on Job DCJ to identify with some care the evidence which was relied upon as establishing the relationship between the parties and to direct the jury that, unless and except to the extent that the incidents the subject of that evidence were proved beyond reasonable doubt, they could use that evidence for no purpose other than to establish what was the relationship between the parties and, in particular, that they could not use that evidence as establishing the Appellant’s propensity to commit offences of the type charge and thus use it as an element in the chain of proof of the offences in fact charged.
As the passage from his summing-up which I have set out in para. 26(above) demonstrates, Job DCJ did not identify, except in the broadest and most general terms, the evidence which was put forward as relationship evidence and, perhaps, as justifying a finding of “guilty passion or sexual interest”. Nor, although his Honour did advise the jury as to the purpose for which relationship evidence stricto sensu might be tendered and the purposes for which it might be used, did he direct the jury as to the test required to be fulfilled before relationship evidence might justify a finding of “guilty passion or sexual interest” and then used a step in the chain of proof of the offences charged. In this respect, therefore, his Honour’s summing-up was defective (see also R. v. AH supra at 708-709 per Ireland J).
Although, as I have earlier (para. 31 (above)) noted, counsel then appearing for the Appellant did not seek any further direction from Job DCJ, the fact that, prior to the Appellant being arraigned, counsel then appearing for him sought to object to the tender of any tendency evidence suggests to me that this is a case in which leave to raise Ground 2 ought to be granted and the appeal upheld on that ground.
I should add that, during the course of submissions, Mr. McClintock drew our attention to the decision of this Court (Abadee, Ireland and Barr JJ) in R. v. Veitch [1999] NSWCCA in which case the Court held that a summing-up which included a direction in terms very similar to those used by Job DCJ in the passage to which I have referred in para. 26 (above)) constituted “a significant error in the conduct of the trial … in that the purpose for which the critical evidence was introduced was not made clear and directions to the jury, appropriate to the established purpose for its introduction, were not given”. The fact that the relevant passage in the summings-up of Coolahan A-DCJ in R. v. Veitch and of Job DCJ in the present case were in such similar terms would suggest that the relevant passage is derived from a form of standard direction to be found in a Bench Book. If this be so, steps should be taken to have the standard direction amended so as to conform with the views expressed by McHugh and Hayne JJ in the passage from their Judgment in R. v. Gipp supra which I have set out in para. 47 (above).
FAILURE TO DISCHARGE THE JURY
Although, in the light of my conclusion in relation to Ground 2, it is strictly unnecessary for me to deal with this ground, it is as well that I do so. In this regard, it is convenient to record what was said by Brereton J in R. v. Ball [1961] SR 37, 41:
“This application turns upon the single question whether the learned trial judge wrongly exercised his discretion in refusing to discharge the jury when an allegedly prejudicial answer was given by a Crown witness to a question asked of him in cross-examination by counsel for the defence. There is no doubt that if irrelevant and prejudicial matter be volunteered by a witness and a subsequent application for discharge of the jury be refused, this Court can, and in a clear case will, intervene even though the matter arose in cross-examination by the defendant’s counsel and a matter of judicial discretion be involved. It is, in my opinion, equally clear that if the answer complained of is a direct, proper and unadorned answer to such a question (even though irrelevant) neither the trial judge nor this Court would regard the matter as being any more than an illustration of the rule that it is imprudent for cross-examiners to indulge in fishing expeditions.
Initially, if allegedly damaging and irrelevant material be volunteered, the matter lies at the discretion of the trial judge. He knows what is being stressed and what is not, he is alive to the temper and the atmosphere of the trial, he can appreciate suggestions and reactions not conveyed by a typed transcript. He is in a much better position than an appellate court to determine what is specious or technical pretext and what is genuine complaint. Therefore, in considering whether or not his discretion was rightly exercised, an appellate court must make due allowance for these factors and must, as far as it can, place itself precisely in the trial judge’s shoes before it interferes. Before substituting its own discretion for his, the appellate court must be clearly of the view, not that it would have exercised its discretion differently, but that the trial judge manifestly exercised his wrongly.”
The passages from the transcript which I have set out in paras. 21 and 22 (above) in my view indicate that, far from Job DCJ’s discretion having miscarried, the course which his Honour took was an appropriate one. In my view this ground has not been made out.
ORDERS
I therefore propose the following Orders:
1. ORDER that the Appeal be allowed.
2. ORDER that the convictions and sentences be quashed.
3. ORDER that there be a new trial.
HULME J: I agree with the orders proposed by Powell JA and with His Honour’s Reasons. However, I would add the following.
In paragraph 50, Powell JA said that Job DCJ should have directed the jury to the effect that the jury could only use evidence of incidents other than that the subject of the particular charge under consideration as showing a propensity to commit offences of the type only if, and to the extent to which, they were satisfied those other incidents were proved beyond reasonable doubt. Authority binding on Job DCJ leads to that conclusion. However for reasons set forth in R v Le [2000] NSWCCA 49 I have difficulty in accepting that that authority is correct. To the references in Le I would now add Pantoja v R (30 November 1999) where the High Court refused special leave to appeal from the decision of this Court holding that motive - a species of circumstantial evidence - need not be proved beyond reasonable doubt.
DOWD J: I have read the judgment of Powell JA in draft form. I agree with the orders proposed by Powell JA and with His Honour's reasons except in so far as there may be any conflict with the reasons given by Hulme J with which I concur.
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LAST UPDATED: 24/05/2000
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