R v OGD (No 2)
[2000] NSWCCA 404
•13 October 2000
Reported Decision: 50 NSWLR 433
New South Wales
Court of Criminal Appeal
CITATION: R v OGD No 2 [2000] NSWCCA 404 FILE NUMBER(S): CCA 60165/1999 HEARING DATE(S): 7 September 2000 JUDGMENT DATE:
13 October 2000PARTIES :
Crown - Respondent
OGD No.2 - AppellantJUDGMENT OF: Mason P at 1; Simpson J at 2; Dowd J at 129
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 97/11/0480 LOWER COURT JUDICIAL
OFFICER :Solomon DCJ
COUNSEL : L Lamprati - Crown
P Byrne SC - AppellantSOLICITORS: S E O'Connor - Crown
Hovan & Co - AppellantCATCHWORDS: Appellant charged with eleven sexual offences - one alleged victim - evidence of admission by appellant - evidence disclosing similar offence with another victim - appellant raises character - cross-examination - evidence of similar offences allegedly committed on two other victims - application of decision in Hoch v R (1988) 165 CLR 292 post Evidence Act 1995 - tendency evidence - directions on character evidence - inconsistent verdicts. LEGISLATION CITED: Evidence Act 1995 CASES CITED: R v Hoch (1988) 165 CLR 292
R v Pfennig (1995) 182 CLR 461
BRS v R (1997) 191 CLR 275
R v Colby [1999] NSWCCA 261 (unreported 26 August 1999)
R v Vinh Le [2000] NSWCCA 49 (unreported 7 March 2000)
R v ACK (unreported, NSWCCA 22 April 1996)
BRS v R (1997) 191 CLR 275 at 301
Wheeler v R (unreporeted NSWCCA 16November 1989)
R v TKWJ [2000] NSWCCA 246
R v BD (1997)97 A Crim R 131
R v Jones (1998) 191 CLR 439DECISION: Appeal against conviction refused. Leave to appeal against sentence refused.
IN THE COURT OF
CRIMINAL APPEAL
MASON P
60165/99
SIMPSON J
DOWD J
13 October 2000
REGINA v OGD No.2Judgment1 MASON P: I agree with Simpson J.
SIMPSON J :
2 On 8 March 1999 the appellant was arraigned in the District Court on an indictment containing nine counts of homosexual intercourse with a male under eighteen years, one count of attempting to commit the same offence, and one count of sexual intercourse without consent. He entered a plea of not guilty to each charge and a jury was empanelled. On 1 April 1999 the jury returned verdicts of guilty on eight of the nine charges of homosexual intercourse, the charge of attempt, and the charge of sexual intercourse without consent, and a verdict of not guilty on one charge of homosexual intercourse. On 8 April 1999 Judge Solomon sentenced the appellant. On the count of sexual intercourse without consent he imposed a term of imprisonment for nine years and one month, made up of a minimum term of six years and one month and an additional term of three years. On each other charge on which the appellant had been convicted he imposed a fixed term of imprisonment for four years and one month. He specified that all sentences were to be served concurrently, commencing on 8 April 1999.
3 The appellant appeals against each conviction and seeks leave to appeal against the sentences imposed.
The Crown case
4 The Crown alleged that all the offences were committed over a period beginning on 1 June 1990 and ending on 4 January 1995 (the sexual intercourse without consent having been committed on the last named date) and on a single victim, JB, who was the appellant’s nephew and who was aged between twelve and seventeen years at the relevant times. The appellant is about fifteen years older than the complainant.
5 The Crown case can be outlined as follows:-6 In 1990 the complainant played in a Friday night basketball competition in Auburn. The appellant was in the habit of driving the complainant to and from the games. On one such occasion, having picked the complainant up, the appellant drove to a park, left the car and walked to a playground area. He masturbated and then forced his penis into the complainant’s mouth, pulled down the complainant’s shorts and inserted his fingers and then his penis into the complainant’s mouth. The complainant was protesting and trying to move away but the appellant became aggressive and used some force to compel the complainant to participate. The complainant cried and screamed when the appellant inserted his fingers into the complainant’s anus, and the appellant desisted. The appellant continued to masturbate.
Count 1
7 During the basketball summer season which was between November 1990 and April 1991, at an observation tower in the same park, the appellant pulled down his own pants, masturbated, and inserted his penis into the complainant’s mouth. The complainant attempted to move away, but the appellant persisted and eventually ejaculated in the complainant’s mouth.
Count 2
8 After another basketball game during the same season the appellant, with the complainant, drove to a side street, stopped his vehicle, masturbated for a time, and pulled the complainant into the back of the vehicle, which was a van. The appellant sat on the back seat with his pants pulled down, his legs splayed open, and pulled down the complainant’s shorts. He attempted to insert his penis into the complainant’s anus but was interrupted in this endeavour by a truck which drove into the street, shining its headlights into the van.
Count 3
9 Again during the same summer basketball season the appellant took the complainant to the observation tower in the park, produced a scrap book of homosexual pornography, began to masturbate, pulled down the complainant’s shorts and touched his penis, and inserted first his fingers then his penis into the complainant’s anus.
Count 4
10 During school holidays in July 1992 the appellant took the complainant to the cinema. On the way they went to the appellant’s home to get some money and went into his bedroom. The appellant pulled down his pants and masturbated. Somehow the complainant came to be lying on his back on the bed with his feet up. The appellant took some moisturising cream and began to penetrate the complainant’s anus with his fingers. The complainant resisted, trying to push the appellant away, but the appellant was stronger and persisted. He masturbated again and inserted his penis into the complainant’s anus. While he did this he called the complainant names such as “little homo”, “poofter”, “faggot”, “gay”. The complainant was distressed and was crying.
Count 5
11 During the school holidays over December 1992 and January 1993 the complainant and the appellant regularly went together to the Maroubra beach and to a stormwater drain on the beach at or near Lurline Bay. The stormwater outlet had a tunnel running down to the beach, and an opening with bars, which the appellant and the complainant used to hang on to, while waves washed over them. To return to the car it was necessary to walk up a ramp in a tunnel, holding a rope provided for that purpose. On one such occasion, as the complainant walked up the ramp, holding the rope, the appellant grabbed the back of his swimming costume, and tried to pull it down. The complainant tried to avoid contact with the appellant but the appellant pushed him to his knees and then inserted his finger into the complainant’s anus. The complainant suffered grazed knees and pain in his anus. The appellant pulled down his own swimming costume and masturbated to erection. He overpowered the complainant and penetrated the complainant’s anus with his penis.
Count 6
12 On another occasion at the stormwater tunnel at Lurline Bay during the same school holidays the appellant removed his own pants and masturbated, then began to remove the complainant’s pants, and felt his groin. Using moisturising cream as lubricant he penetrated the complainant’s anus, firstly with three fingers, and then with his penis.
Count 7
13 During the 1993-4 summer school holidays, the appellant and the complainant again went regularly to Maroubra Beach and Lurline Bay. Near the baths at the back of the stormwater tunnel, the appellant put his penis in the complainant’s mouth. The complainant pushed him away, he (the appellant) lost balance and fell and became angry and put his hand around the complainant’s neck and told him not ever to do that again. Although the complainant was quite emotional as a result of this, the appellant put his finger and then his penis in the complainant’s anus. While penetrating the complainant with his fingers, he used his other hand to masturbate.
Count 8
14 Again at the storm water tunnel and during the same school holidays the complainant saw the appellant masturbating. [This was the count on which the appellant was acquitted. It will be necessary to return to deal in more detail with the complainant’s evidence relating to this charge when considering the final ground of appeal.]
Count 9
15 On 10 April 1994 the complainant took part in a triathlon competition at Kurnell. The appellant was also a competitor. After the competition the appellant drove the complainant back to his (the appellant’s) home. The complainant sat on a couch downstairs. The appellant produced a video, which he told the complainant was about aviation and aeroplanes, a topic which interested the complainant at that time. The video was, however, homosexual pornography. The complainant sought to depart, saying he would meet the appellant in the car after the video was finished. The appellant told the complainant to accompany the appellant upstairs. The complainant refused. The appellant raised his fist and ordered the complainant to go upstairs. The complainant complied. The appellant masturbated. Somehow the complainant came to be face down on the bed. Using lubrication the appellant began to put his fingers in the complainant’s anus, which the complainant resisted. This made the appellant more aggressive. The appellant was using about four fingers to penetrate the complainant, causing considerable pain. The appellant also penetrated the complainant’s anus with his penis, and ejaculated. The complainant was crying.
Count 10
Count 11
16 On 4 January 1995 the complainant was at home, helping to renovate a bedroom. The appellant came to the house and went upstairs. The complainant saw that he was in another bedroom, masturbating in front of a mirror. The appellant rushed over, grabbed the complainant and pushed him against a wall, causing the complainant to drop the equipment he was carrying. The complainant tried to push the appellant away, but the appellant pinned him against the wall. The appellant punched the complainant on the jaw. The complainant became tearful. The appellant led him to a bedroom, and pushed him into the room, tugging at the complainant’s clothes. The complainant was terrified. He took off his own clothes. He was lying on the bed with the appellant on top of him, feeling the complainant’s anus. He forced the complainant’s legs apart and had full homosexual intercourse.
17 During the course of this offence the complainant told the appellant that he was going to die in hell. The appellant told him there was nothing wrong with molesting, it was just that the complainant did not like it. Later, he asked the complainant if he intended telling his parents. The complainant said he did not. The appellant extracted from the complainant a promise not to tell anybody.• • •
18 Count 3 was the count that charged an attempt at homosexual intercourse with a male under eighteen, as distinct from the completed offence. Count 11 was the count that charged sexual intercourse without consent. All other counts were of homosexual intercourse with a male under eighteen years. Count 9 was the count that resulted in a verdict of not guilty.
The course of the trial
19 The principal witness for the Crown was, of course, the complainant. He gave evidence of some similar incidents, not the subject of any specific charge. No objection was taken at trial to that evidence and there is no ground of appeal complaining of its admission.
20 There was evidence of other sexual misconduct by the appellant, with boys other than the complainant. Four grounds of appeal concern the admission of this evidence and the directions given in relation to it. It was given by witnesses who will be referred to as “JS”, “PP”, and “SB”.
21 JS, like the complainant, is a nephew of the appellant, and a cousin of the complainant. He is two and a half years younger than the complainant. He gave evidence of an occasion in 1991 (when he was about ten years of age) when he and the appellant were alone. The appellant asked him “Do you want to have a wank?”. JS said that the appellant then pulled down his own pants and masturbated, JS did the same, the appellant asked for mutual masturbation, and asked JS “to suck him off”. JS expressed some reluctance and the appellant asked if he “could put his finger up my bum”.
22 JS said that while this was happening the appellant told him that it was all right to do “these things”, that he used to do them with the complainant and that the complainant said that it felt good.
23 Objection was taken on a number of bases to the admission of JS’s evidence and a voir dire was conducted. The trial judge ruled that the evidence would be admitted. It will be necessary, in due course, to return to deal in more detail with the objections, the voir dire evidence, and the reasons given by his Honour for his decision to admit the evidence.
24 A number of other witnesses gave evidence in the Crown case, to which it is not presently necessary to refer. The appellant gave sworn evidence. During the course of his evidence in chief he was asked about an occasion, after the complainant’s allegations had been made, when he was in the company of three young males, one of whom was PP, another nephew of the appellant, and a cousin of the complainant and JS. The appellant said that one of the other young men asked him directly if he had raped the complainant, which he denied. He was then asked about any further conversation between himself and the young men. He was asked the following questions and gave the following answers:
“Q What can you remember being said and by who?
A I don’t know in what order but the question “Are you sure you didn’t rape [the complainant]” or words to that effect and again I said ‘no’. Then the questions were “what was it like with [the complainant]?” and words to that effect and then I went on to explain our relationship on a summary basis, like what we did together like triathlons, going to the beach, surf, squash, basketball, cycling and that was pretty much it.
Q But can you remember anything else asked of you on that particular day?
A On that day I don’t know whether it was in the house or when we were around walking, someone posed a question and said, “Why should we believe you than [the complainant] and how is it we don’t know that you’re lying?” And I said, “Well, because look at you guys, you’ve been out with me all your lives and nothing happened,” and “Why would I do such a thing to [the complainant], why should it be any different with [the complainant]?”
25 As a result of this evidence the Crown sought leave to cross-examine the appellant in relation to other alleged instances of sexual misbehaviour by him, and to call evidence of such misconduct in a Crown case in reply. The basis for the applications was the Crown’s contention that, in the last part of the passage extracted, the appellant had adduced evidence to prove that he was a person of good character, thereby rendering applicable the provisions of s 110 of the Evidence Act 1995. Counsel for the appellant at the trial conceded that the effect of the evidence given by the appellant was to introduce the question of character, and senior counsel on the appeal has made a similar concession.
26 Accordingly, leave was granted to the Crown Prosecutor to cross-examine the appellant on character. He put to the appellant that over a number of months, in particular during 1988, he had had sexual contact with PP. The appellant denied that, asking rhetorically why he would make such a statement (that is, give the answer that has been extracted in paragraph 25 above) if he knew that he had acted in that way with PP. It was put to him that, a couple of weeks before the first incident of actual sexual activity between himself and PP, he had sent PP to his bedroom where there were some homosexual pornographic publications. Some specific allegations of sexual misconduct with PP were put to the appellant, and a number of questions were asked of him suggesting that he had told PP that there was nothing wrong with this kind of activity.
27 Questions were also asked of the appellant about alleged sexual misconduct with SB, who was the complainant’s brother. The appellant denied all allegations.
28 The Crown Prosecutor applied for, and was granted, leave to call evidence in reply. He proposed to call PP and SB.
29 Counsel for the appellant made an application for the evidence of those witnesses to be taken on a voir dire. He expressed this to be for the purpose of exploring “the issue of concoction”. The two witnesses gave evidence on the voir dire and were cross-examined. His Honour formulated for the consideration of counsel a direction he contemplated giving the jury.
30 PP was then called in the Crown case in reply. The judge gave the jury a direction to the effect that his evidence was admitted only for the purpose of rebutting the suggestion made by the appellant that he was a person of good character. He emphasised that the evidence was admitted for that limited purpose only, and was not to be used by the jury as evidence to strengthen the Crown case on the charges of sexual misconduct with the complainant. Both counsel expressed themselves satisfied with the direction.
31 PP gave evidence of an occasion when the appellant had produced a pornographic magazine of a homosexual type, together with some heterosexual material. He gave evidence of another occasion when he was in an aunt’s bedroom when the appellant entered, wearing only a T-shirt, masturbating and laughing. PP also exposed himself. He said that the appellant reassured him by saying that their conduct did not mean that they were homosexual, just that they were relieving tension, and that he (the appellant) also had sex with females. PP said that on another occasion he and the appellant went from PP’s grandparents’ (the appellant’s parents’) house to a video shop when the appellant asked him if he wanted “to go for a wank or a pull”. He said they were in the appellant’s car, on a road with a beach on one side and a golf course on the other, the appellant pulled over, got out of the car and went to the bushes and that he followed. The appellant pulled his pants down and masturbated and invited PP to join him, again saying that they were not gay. The appellant began sucking PP’s penis and then asked PP to do the same thing to him which he did for a short time before pulling away.
32 PP gave evidence that on another occasion on the other side of the same road there was an almost identical incident where the appellant exposed himself and masturbated.
33 PP spoke of another occasion when he was doing work experience with the appellant when they were in a lift motor room and the appellant unfastened the overalls he was wearing, exposed himself and masturbated. They were interrupted and the appellant re-fastened his clothes.
34 On another occasion, still during the work experience period, the appellant was driving PP home, but took a detour to PP’s grandparents’ home where the appellant then lived. He took PP to his bedroom, used the same sort of language as he had previously, undressed, and asked PP to do the same. He then performed oral sex on PP to the point that PP ejaculated, and asked PP to do the same to him, which he did. He asked PP if he could ejaculate in his mouth, PP declined but the appellant sought to coax him to agree. PP refused and the appellant masturbated to ejaculation.
35 PP spoke of another occasion, a Tuesday night, when his parents had gone to the cinema. The appellant visited him and they engaged in oral sex again. They were interrupted by PP’s uncle but resumed the activity when he departed. Again the appellant performed oral sex on PP to the point of ejaculation and asked PP to do the same to him. The appellant again said that he wanted to ejaculate in PP’s mouth but PP declined and the appellant masturbated to ejaculation.
36 Shortly after that incident, on an occasion when members of the family had been bowling, the appellant ushered PP into his own (PP’s) bedroom, asked him to lock the door, pulled his pants down, sat at the desk masturbating and invited PP to participate. They were interrupted by PP’s mother who tried to open the locked door. That brought an end to that incident.
37 The last occasion of which PP gave evidence was an event on a Saturday afternoon when the appellant called at PP’s grandparents’ for coffee and asked PP to get something from the appellant’s room. PP went to the bedroom and found pornographic publications strewn all over the floor. When he returned the appellant asked if he wanted “to go for a wank or pull or something” and PP declined and said he had had enough. The appellant asked again and PP began crying. The appellant was sitting on a chair in the kitchen, he slouched back and said “What the fuck am I doing?” to himself.
38 In all, PP gave evidence of no less than nine instances of sexual impropriety on the part of the appellant.
39 SB was then called. As soon as he had been identified the trial judge gave the jury a direction about the use of his evidence which was substantially identical to that he had given in relation to PP’s evidence.
40 SB gave evidence of three separate incidents of sexual misconduct on the part of the appellant. The first occurred in about 1989 when he was fifteen and still at school. Members of the family went to the beach and then back to SB’s grandparents (the appellant’s parents’) home where, eventually, SB “found myself in [the appellant’s] room with him and myself”. Nobody else was present. The appellant did most of the talking, and turned the conversation to sexual matters. He then exposed his penis and invited SB to do the same. Eventually SB did so and the appellant took hold of SB’s penis while at the same time holding his own. He said “Why don’t you have a wank?” or words to that effect, an invitation SB declined, pushing the appellant’s hand away. The appellant persisted, and suddenly pulled down SB’s pants. This incident was interrupted by SB’s mother calling for everybody to go home. The appellant admonished SB not to tell anybody and the incident came to an end.
41 The second incident of which SB spoke allegedly occurred in 1990 when he was sixteen years of age. On a Friday, when he and the appellant were alone in the house, the appellant asked him if he wanted “a wank” to which SB made no reply. The appellant persisted and then told SB to lock the front door, which he did. He returned to the bedroom and found the appellant leaning against his desk with his shorts pulled down so as to expose his penis. He was masturbating. He asked SB if he wanted “to wank” and SB, feeling intimidated, exposed his own penis. The appellant took hold of SB’s penis, knelt down and tried to take SB’s penis into his mouth. SB pushed him away.
42 There was a third incident of which SB gave evidence. SB and another brother, PP and the appellant were together at the grandparents’ home. The appellant and SB went for a drive, ostensibly looking for female company. The appellant suggested that, in the area they were, they would not find any female company and said: “Why don’t you have a wank instead?” SB rejected the proposition and the appellant made repeated requests. While the appellant was driving he used his left hand to masturbate.
43 The above account of the evidence does not include reference to all of the evidence given either in the Crown, or the defence, cases. It is an outline of what is necessary to understand the grounds of appeal. It will be necessary to expand the references to the evidence in some respects when considering the individual grounds of appeal.44 The grounds of appeal are pleaded as follows:
The grounds of appeal
“1. The learned trial Judge erred in permitting cross examination of the appellant regarding allegations of sexual misconduct by him towards [PP] and [SB].
2. The learned trial Judge erred in permitting the Crown to call a case in reply to enable the witnesses [PP] and [SB] to give evidence of sexual misconduct by the appellant towards them.
3. The learned trial Judge erred in allowing evidence to be given by [JS] of sexual misconduct by the appellant towards him.
4. The directions given by the learned trial Judge on the use which the jury may legitimately make of the evidence of sexual misconduct by the appellant other than in the offences charged were inadequate.
5. The directions given by the learned trial Judge on the question of character were inadequate.
6. The verdicts of the jury are so inconsistent as to render the verdicts of guilty unreasonable.”
Grounds 1 - 4
45 A common element underlies grounds 1 - 4, which means that, up to a point, these grounds may be dealt with together. The common element is that they all concern cross-examination suggesting, or evidence disclosing, the commission of sexual offences, or involvement in sexual misconduct, by the appellant on occasions other than those the subject of the charges, and with individuals other than the complainant. The appellant’s contention is that the cross-examination should not have been permitted, and the evidence should not have been admitted.
46 Not all of the evidence, or cross-examination, here in question came to be admitted in same way and different considerations will arise in some respects. The evidence of JS that implicated the appellant in such misconduct was given incidentally and could not be extricated from evidence of the alleged admission by the appellant of the very conduct the subject of the charges. The purpose of the Crown in calling JS was to place before the jury evidence of the admission he claimed the appellant had made. This evidence was given in the Crown case in chief. The cross-examination of the appellant concerning misconduct towards PP and SB, and the evidence of these witnesses, given in the Crown case in reply, was admitted because of the answer given by the appellant that, it was and is conceded, raised character. Notwithstanding the different circumstances in which the evidence came to be given, the present challenge to its admission is based upon a single proposition.
47 That proposition may be simply stated. It was that a proper application of the principles stated by the High Court in Hoch v R (1988) 165 CLR 292 dictated the exclusion of the evidence of each of the witnesses and refusal of leave to cross-examine the appellant.
48 What Hoch decided, as I understand it, is that, at common law, similar fact evidence (at least in cases involving allegations of sexual offences) is not admissible unless the evidence is not reasonably capable of explanation on the basis of concoction. The principle was affirmed in R v Pfennig (1995) 182 CLR 461 (see, eg, p 483 per Mason CJ Deane and Dawson JJ; p 506 per Toohey J); and in BRS v R (1997) 191 CLR 275 (see p 292, per Toohey J; p 300, per Gaudron J, p 305, per McHugh J; p 328, per Kirby J).
49 Hoch was decided in 1988 in the context of the criminal legislative provisions of the State of Queensland. It may be taken, except where a state or territory legislature has enacted a law inconsistent with the principles there enunciated, to have stated the law for the states and territories of Australia with respect to its subject matter. Its subject matter was the admissibility of similar fact evidence.
50 In 1988 the NSW Parliament had enacted no legislation with respect to the admissibility of similar fact evidence that was inconsistent with Hoch. That, however, is no longer the case. The Evidence Act 1995 contains specific provisions dealing with what is now called “tendency evidence”: see Evidence Act, Part 3.6, especially ss 95, 97, 101 and the Dictionary. In my opinion, while the reasoning in Hoch is persuasive in the manner to which I shall presently come, it can no longer be regarded as a comprehensive statement of the law of the admissibility of similar fact evidence in criminal cases in NSW. If it is inconsistent with any provisions of the Evidence Act, to the extent of the inconsistency, it must yield to those provisions.
51 Senior counsel for the appellant went so far as to argue that Hoch stands as an independent, free standing rule of law or evidence that would have (and should have had) the effect of requiring the exclusion of the evidence of JS, the refusal of leave to cross-examine the appellant on his sexual conduct with young men or boys other than the complainant, and the exclusion of the evidence of PP and SB. Some support may be discerned for that contention in R v Colby [1999] NSWCCA 261 (unreported, 26 August 1999 para 107). There, Mason P, with whom Grove and Dunford JJ agreed, said:
“…the procedural approach adopted in Hoch should be applied to trials conducted in accordance with the Evidence Act 1995 where evidence is admitted to show tendency (cf s97) or to rebut coincidence (cf s98). If the reasonable possibility of concoction suggests that evidence of this nature may be contaminated, it must be withheld from the jury because that risk deprives the evidence of its significant probative value, regardless of its substantial and relevant similarity.” (para 107)
52 I would, nevertheless, reject the appellant’s argument. In my opinion, in NSW, Hoch has been overtaken by the Evidence Act, and is to be applied only in the context of and subject to the provisions of that Act. This view is consistent with, though perhaps more strongly stated than, that expressed by Hulme J in R v Vinh Le [2000] NSW CCA 49 (unreported, 7 March 2000) at para 112 and following.
53 I respectfully agree with his Honour’s reasoning in that case in this respect. These views are, in turn, not inconsistent with those expressed in R v Colby if that judgment is read as I propose, in para 77 below, it should be read.
54 I think it is appropriate to make this observation. Where questions of admissibility arise in NSW courts, the first port of call for trial counsel and judges, since 1995, is the Evidence Act. Many previously well established common law principles have been subsumed in that Act; perhaps the most notable example is the law relating to the admissibility of hearsay evidence. But the overtaking of common law principles by the Evidence Act goes well beyond the law relating to hearsay evidence.
55 Where the Evidence Act speaks on a particular subject matter, it may be taken that its provisions were intended to replace or override the existing common law. The twin subject matters of tendency and coincidence provide an illustration of subject matters on which the common law has been overridden by the Act. This is not to consign decisions that pre-date the Evidence Act regime to the dust bin. The Evidence Act confers discretions, and sometimes requires the exercise of judgment with respect to the admission of evidence which is, prima facie, admissible. These ensure flexibility in the application of the rules otherwise more rigidly stated. Ss 135, 136 and 137 are examples. The exercise of the discretion, and exercise of judgment, will in many cases be guided by the reasoning to be found in pre Evidence Act decisions. But those decisions will give way to a clearly stated legislative intention and may no longer be regarded as authority of the same dimension as previously. The common law relating to similar fact evidence, stated in cases such as Hoch, Pfennig, BRS and others should be seen as in this category. All this is implicit in the judgment of Gleeson CJ in R v ACK (unreported, NSWCCA, 22 April 1996) where his Honour observed that the trial the subject of the appeal had been conducted before the enactment of the Evidence Act and that the admissibility of the evidence there in question was to be determined according to the common law principles.
56 What follows from this conclusion is that the admissibility of the evidence, and the correctness of the decision to grant leave to cross-examine the appellant, must be decided by reference to Evidence Act provisions, not by reference to a stand-alone principle as stated in Hoch . That is not, as I have earlier foreshadowed, to say that Hoch, or the reasoning therein, is irrelevant to the considerations that arise under the Evidence Act.57 I have made reference to the provisions of the Evidence Act concerning tendency evidence, which, in my view, supplant the common law rules of similar fact evidence. I would not wish it to be thought that the evidence here under consideration is being treated as tendency evidence under the Act. It is not. The definition of tendency evidence in the Dictionary is:
Tendency evidence under the Evidence Act
“…evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that sub section .” (emphasis added)
58 Neither the evidence of JS, nor that of PP or SB, nor the cross-examination of the appellant, was tendered for a tendency purpose. The capacity of that evidence to establish tendency was incidental to the purpose for which it was tendered, that purpose being, in the case of JS’s evidence, the admission he claimed had been made to him by the appellant, and in the case of the evidence of PP and SB and the cross-examination of the appellant, the rebuttal of the appellant’s own claim to good character.
59 Accordingly, the evidence was not tendency evidence.
60 However, as it will be necessary to refer below to the specific provisions concerning tendency evidence, it is convenient here to set out those sections of the Evidence Act that regulate the admissibility of such evidence. The principal section is s 97, which provides as follows:61 S 101 applies only to criminal proceedings, and is in the following terms:
97. The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if:
(2) Subsection (1) (a) does not apply if:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
62 Finally, s 95 provides:
101. Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
(4) …
95. Use of evidence for other purposes
(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.63 By reason of s 95, the evidence of any of these witnesses, even where it had the capacity to establish tendency, could not be used for that purpose. The effect of s 95, in its practical application to this case, required that the jury be given a specific direction that they could not use the evidence for the purpose of concluding that the appellant had a tendency to act as was alleged against him in the Crown case.
64 I refer to the tendency provisions only to show that in NSW Hoch must now be read subject to those provisions, and not on the basis that the admissibility of the evidence here in question is governed by those provisions.
65 JS’s evidence was tendered as an admission. Its admissibility was therefore governed by Part 3.4 of the Evidence Act. There is nothing in that Part that renders the evidence inadmissible. Whether it should or should not have been admitted depends upon the exercise of discretion and judgment in accordance with the requirements of ss135, 136 and 137.
The correct approach to the tender of JS’s evidenceEvidence Act, ss 135, 136 and 137
66 In considering evidence which, although tendered for a purpose other than to establish tendency, and which is not, therefore, excluded by ss 97 or 101, but which, nevertheless, is capable of disclosing tendency, it will be necessary for a trial judge to consider whether either of ss 135 or 137 requires the exclusion of the evidence, or s 136 requires limitation on its use.
67 S 135 confers a general discretion to exclude evidence if its probative value is substantially outweighed by the danger that the evidence might:
(i) be unfairly prejudicial to a party;
(ii) be misleading or confusing; or
(iii) cause or result in undue waste of time.
68 S 137 requires an evaluation of the probative value of the evidence relative to the danger of unfair prejudice which its admission would create, and, where that evaluation is that the danger of unfair prejudice outweighs its probative value, obliges the trial judge to exclude it. There is no discretionary element in this exercise. The balancing exercise determines admission. Should the evidence be admitted after these two exercises are performed, the application of s 95 will demand that the jury be given a direction, under s 136, as to the limited use that can be made of it.
69 The consideration to which the attention of the High Court was directed in Hoch was whether, in a trial on a charge of sexual assault concerning one child, evidence of similar sexual assaults on other children would have been admissible. (In fact, a trial of charges concerning similar allegations in relation to three complainants had, over the objection of counsel, been conducted, resulting in convictions. The question, accordingly, was whether the decision to hold a joint trial of three charges amounted to a miscarriage of justice, and this question was, in turn, to be determined by reference to the question whether, on separate trials of the three charges, the evidence of the other complainants would have been admissible. If it would, no miscarriage of justice had been demonstrated. However, if it would not, the result was that the trial conducted was unfair because the jury had before it the highly prejudicial but inadmissible evidence of the other complainants.)
70 In the majority judgment, Mason CJ, Wilson and Gaudron JJ held that the possibility (as distinct from the probability or real chance) of concoction would have rendered the evidence inadmissible. A trial judge will be required to make an assessment, on the available material, of whether the similar fact evidence is capable of reasonable explanation on the basis of concoction. If so, then the evidence must be excluded. Just what, in practical terms, a trial judge is required to do will depend upon what material is available; the assessment may be able to be performed on statements or depositions, or a voir dire may be necessary. Their Honours made it clear that, while the judge is not required to reach a conclusion about whether or not there was in fact concoction, he or she is engaged in a fact finding exercise about the possibility of concoction. Relevant factors include the relationship between the potential witnesses, and opportunity and motive on their part to concoct their accounts. I do not, however, read their Honours as saying either that the presence of each of these factors will necessarily dictate the exclusion of the evidence, nor that their absence will dictate its admission. The exercise is, as I have noted, a fact finding one, the fact to be determined being whether there was a real possibility of concoction. Concoction is not limited to the circumstance where the witnesses might have agreed, in what was referred to in Hoch as a conspiracy, to give false evidence; the term is wide enough to include concoction by a potential witness, in isolation, but after becoming aware of the allegations against the accused person: BRS v R (1997) 191 CLR 275 at 301 per Gaudron J.
71 The minority judgment in Hoch was to similar effect. Brennan J (as he then was) and Dawson J held that:72 It is not entirely clear whether the High Court intended to state a negative or a positive test; that is whether it was looking to the negativing (by the Crown) of any real possibility of concoction, or whether it was looking to a positive finding that there was a possibility of concoction as the basis for exclusion. There are passages in the judgments that would support either conclusion. For example, in the majority judgment the following passages appear:
“If there is a real chance that the evidence is a concoction born of a conspiracy, the trial judge can hardly be satisfied that it possesses the probative force which alone warrants its admission.” (pp 300-301)
73 In the minority judgment the following passages appear:
“His Lordship there posited that the possibility of concoction - not a probability or real chance of concoction - served to render such evidence inadmissible. Indeed we think that must be right.” (p 296)
“… the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused.” (p 296)
…
“… the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction.”
(p 297)
“Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction.” (p 297, emphasis in original)
“…if there is a real chance that the evidence is a concoction born of a conspiracy, the trial judge can hardly be satisfied that it possesses the probative force which alone warrants its admission” (pp 300-301)
“…if there were no real chance of a conspiracy among the complainant boys, their evidence would have been admissible on all counts.” (p 302)
“…the possibility of a conspiracy is critical to the assessment of the force of each boy’s evidence to prove a system or to rebut a defence of innocent association or to confirm the truthfulness of the evidence of another boy.” (p 302)
“Admissibility of evidence of this kind depends not only on similarity between the acts which the prosecution seeks to prove but, more importantly, on the non-existence of “a cause common to the witnesses’.” (p 302)
“If there is a real danger of a concoction of similar fact evidence it is consistent with the attitude which the law adopts toward evidence of that kind that it should exclude it upon the basis that its probative value is depreciated to an extent that a jury may be tempted to act upon prejudice rather than proof.” (p 302)
“There is a like duty on a trial judge to exclude similar fact evidence unless he is satisfied that there is no real chance that it is the product of a cause common to the witnesses.” (p 304)
74 I would take the view, consistent generally with the approach taken in criminal law, that the High Court intended to state a rule that similar fact evidence is inadmissible unless (the onus lying upon the Crown) the judge is satisfied that there is no real possibility of concoction. However, I also favour the view, foreshadowed above, that their Honours envisaged a genuine fact finding exercise, in which evidence, if considered necessary or appropriate, could be adduced from the witnesses from whom the Crown seeks to adduce the similar fact evidence, and in which the focus of inquiry is on the factual (as distinct from theoretical) possibility of concoction.
75 In Wheeler v R (unreported NSWCCA, 16 November 1989) this court, constituted by Lee CJ at CL, Grove and McInerney JJ, held that the Hoch principles apply equally to evidence adduced as character evidence which is also capable of proving similar fact. Although some doubts have been expressed about the correctness of this approach (see, eg R v TKWJ [2000] NSWCCA 246, unreported, 13 September 2000, per Adams J para 65-67) it has never been overruled. Given my views about the correct approach to post - Evidence Act trials, it is unnecessary to consider the applicability of Wheeler.
76 The procedure envisaged and the principles stated in Hoch are readily adaptable to the regime provided for NSW by the Evidence Act. This is what, as I read it, Mason P had in mind in Colby in the passage extracted above.
77 Were it not for this passage in Colby, I would have concluded that the Hoch considerations are relevant to, but not determinative of, the application of the discretionary test provided in s 135, and the evaluation in s 137. However, having regard to the passage in Colby, that view must be modified. Where, in relation to evidence that is capable of disclosing a tendency on the part of an accused person, (whether or not it is tendered for that purpose and is accordingly properly characterised as “tendency evidence”) and the Crown fails to exclude the reasonable possibility of concoction on the part of the proposed witness or witnesses, the evidence must be excluded. However, the reason for doing so lies in the case of tendency evidence properly so-called, in s 101(2) of the Evidence Act, because of its reference to “probative value” outweighing “prejudical effect”; and, in the case of evidence not tendered for that purpose, and therefore not tendency evidence for the purposes of s 97, in ss 135 and 137 of the Evidence Act, and not in a rule of general application enunciated in Hoch. The approach in Hoch also guides the exercise of the s 135(a) discretion, and the evaluative process of s 137, again because of the need to weigh probative value against prejudicial effect.
The approach taken by the trial judge
78 JS’s evidence, it will be recalled, was given in the Crown case in chief. Objection having been taken to its admission, a voir dire was conducted. His statement was tendered. (This was not before this court.)
79 Four witnesses, including JS, gave evidence on the voir dire. Besides JS, they were his mother (VS), the complainant, and the complainant’s mother (LB).
80 JS’s evidence, adduced by the Crown Prosecutor on the voir dire, was very brief. He said that, prior to making a statement to police about his allegations, the only person to whom he had spoken on that subject was his mother, who had approached him and asked him if anything had happened to him. He denied having had any conversation with the complainant or with any other member of his immediate family. He said that his contact with the complainant was not regular, but they saw each other from time to time at family gatherings. He estimated their contact to have been between five and ten times in a year. He said he probably had no contact at all with the complainant by telephone.
81 Cross-examination was extensive. A concerted attempt was made on behalf of the appellant to establish that JS knew about the complainant’s allegations. This was undoubtedly done with a view to establishing the possibility that JS had concocted his allegations, either in collusion with the complainant, or alone, but as a result of hearing of the complainant’s allegations. JS agreed that when his mother first questioned him, he told her that nothing had happened to him, and said that he knew what she was talking about because she had told him something of the complainant’s allegations. He knew that these amounted to “molesting”, although he was not certain that that word had been used at the time. He repeated his denial of any conversation with the complainant about his allegations, or about related matters. He denied having heard any family talk about “some type of trouble”, saying he had no idea what sort of trouble was being referred to.
82 The evidence given by JS’s mother, VS, was to similar effect. She said that she raised the subject with JS, having learned of the complainant’s allegations, but did not give JS any details of those allegations.
83 The complainant’s evidence also supported that of JS in this respect. He denied having any conversation with JS about his assertions, and said they were not “overly close” as cousins, living some distance apart, and there being a three year difference in their ages. He thought that he had seen JS, in the year preceding his own complaint to police, about two or three times, those occasions being family functions. He denied telephone contact. In cross-examination he said that the appellant had told him about what he had done to JS. The complainant’s mother said that she told VS that “[the appellant] raped [the complainant]” and suggested that he might have done something similar to JS, but did not give her any detail, because she herself did not know precisely what the complainant alleged.
84 At the conclusion of the voir dire the trial judge expressed a view of the facts in the following terms:85 His Honour did in fact deliver a judgment in relation to the admission of JS’s evidence. He dealt with a number of objections to his evidence being admitted, which are not here relevant. The transcript then records:
“In the case of Hoch there are three matters: Close relationship, opportunity and ill-disposition. One complainant was ill-disposed towards the accused so they were the three matters that seemed to be in the minds of the High Court. There doesn’t appear to be any ill-disposition there doesn’t appear to be a close relationship between [JS] and [the complainant]. There doesn’t appear to be the real opportunity for them to concoct their facts so they are the three matters that were playing on the minds of the High Court.”
86 Remarks made by his Honour during the course of the voir dire made it perfectly clear that he was fully aware of, and focused upon, the question of the possibility of concoction. At an early point, during the course of cross-examination of JS, he asked if a particular question (or line of questioning) was directed to the question of concoction. Later, when VS was being cross-examined, he intervened to halt the cross-examination, saying that he failed to see how the particular questions addressed that issue. Finally, and most strongly, at the conclusion of JS’s cross-examination, he intervened again to say that the line of cross-examination was not assisting, and, after some unrecorded discussion, he said:
“The submission which has the greatest weight is the submission that I should exclude the evidence under s 137 of the Evidence Act. S 137 of The Evidence Act provides that “In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.’
So far as the evidence concerned (sic), I am satisfied that the evidence has great probative value. It is evidence which can be used by the jury as an admission of guilt by the accused. In so far as the danger of unfair prejudice to the accused, it is necessary for me to decide whether in the words of Bruce J Regina v BD (1997) 94 A Crim R 131 at p151, “There is a real risk that the evidence will be misused by the jury in some unfair way”. I am satisfied that by giving an appropriate direction to the jury that the jury will not use the evidence in an unfair way and that the jury would use the evidence only as evidence of an admission.”
87 His Honour accordingly ruled that JS’s evidence would be admitted, and JS gave his evidence before the jury. At the conclusion of his evidence in chief, which was, again, very brief, his Honour gave the jury a direction in the following terms:
“I’m looking in the circumstances in this particular case the two boys got together or two mothers got together. That’s what I am looking to see, possibility of concoction. There has been a concoction within the overall ambit of the case. Whether this woman has given her son the facts of life or how she came upon the words enter someone doesn’t come within a bull’s row (sic) of concoction. It’s just in a different suburb, as I see it.”
(In my opinion it is clear that the word, “whether” should be inserted at the beginning of the third sentence, which otherwise might be read as a finding of fact.)
“This evidence of [JS] has been admitted for a specific purpose in law. It has been given in the case so that you can consider it in the following light; to consider whether the accused has made an admission in relation to the activities charged against [the complainant]. I will say more about that later but the evidence has been given for a narrow specific purpose and the purpose is for you to decide whether what the accused said to [JS] amounts to an admission about what the Crown alleges the accused did with [the complainant].
The evidence must not be used by you for any other purpose. You must not say well because this witness alleges activities involving himself and the accused of a sexual nature that the accused has a propensity to engage in such activities with young men or young boys. You must not say that the accused is the type of person who does involve himself in those activities. You must not substitute the evidence which this witness has given, the evidence which the accused faces in respect of the allegations made by [the complainant]. It has been given for a specific narrow purpose and that is for you to decide whether, or decide if you accept the conversation and if you do, whether you regard the conversation as any type of admission in regard to the allegation in the trial.
It would be wrong of you to convict this accused by using the style of logic, well it is alleged he has done it with others and therefore he is the type of person to commit this offence. You must not do that. You must look at the offences separately and not look at this evidence in that light. You must not say that he is the sort of person who has the tendency to do what this witness alleges was done to him and you must not treat the evidence as some sort of coincidence evidence, it happened here, therefore it must have happened there. You must not use that style of logic. That would be improper and wrong.
You must only use the evidence for the purpose of whether the accused has made an admission in relation to charges which the accused faces regarding [the complainant].”
88 This was, in effect, a direction under s 136 and in accordance with s 95, limiting the use the jury could permissibly make of evidence that may otherwise have been interpreted as evidence of tendency. No complaint about the direction was or is made. It was entirely correct and proper.
89 The above analysis makes clear that the approach taken by his Honour and his consideration of JS’s evidence was in conformity with what I have suggested was the correct approach. There was no incorrect evaluation of the relative probative value and potential for unfair prejudice, and no error in the exercise of the s 135 discretion. No error has been demonstrated in relation to the admission of JS’s evidence.
Character: Cross-examination of the appellant
90 On behalf of the appellant, it was conceded, both at the trial and on appeal, that the answer given by the appellant, extracted above in paragraph 24 raised character as an issue. No issue therefore falls to be determined as to the construction of his evidence.
91 The following morning, in the absence of the jury, the Crown Prosecutor sought leave, under s 112 of the Evidence Act, to cross-examine the appellant about his character, and in particular about the allegations of sexual misconduct by him towards PP, who had already given evidence in the Crown case in chief on other matters. The appellant’s counsel accepted that character had been raised but argued that the question was whether it had been raised intentionally.
92 S112 provides:
“ 112. Leave required to cross-examine about character of accused or co-accused
A defendant is not to be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave.”93 By s 192, in considering whether to give leave, the judge was required to take into account, relevantly, the extent of any unfairness that would be occasioned to the appellant by the proposed cross-examination, the importance of the subject matter of the proposed cross-examination, and the nature of the proceeding.
94 The transcript of the discussion shows that the appellant’s counsel had, at the commencement of the trial, been put on notice that the Crown had available to it evidence of sexual misconduct by the appellant with PP and SB, and that, if the appellant raised character, it would seek to introduce that evidence. The transcript also shows that the argument extended to a consideration of the provisions of s 137.
95 His Honour was satisfied that the appellant’s answer asserting his good character had been given intentionally, and he gave the Crown Prosecutor leave to cross-examine on the allegations of prior misconduct. He stated his conclusion that:
“…the probative value of the evidence is high and is not outweighed by the danger of unfair prejudice to the appellant.”
The allegations made by PP and SB were then put to the appellant. He denied them.
96 Although the judge’s conclusion is expressed in terms drawn from s 137, it incorporates the considerations made necessary by s 192. The approach he took was correct and there is no error in his evaluation of the relevant matters, or in the exercise of discretion to grant the leave sought.
97 When the defence case concluded, and before PP and SB were called in reply, counsel for the appellant applied for a voir dire in relation to their evidence, as he put it, “on the issue of concoction”.
98 Although it is clear that his Honour had ruled on the Crown’s earlier application for leave to cross-examine the appellant in relation to allegations made by those witnesses, it is not quite so clear that he had ruled that the Crown could also call evidence in reply. If he had not, then the purpose of the voir dire was undoubtedly to attempt to elicit evidence of concoction that would result in a finding of fact of the kind envisaged in Hoch, which would in turn result in the exclusion of the evidence. If his Honour had already ruled that the Crown was entitled to call the evidence in reply, it seems that the purpose of the voir dire was to the same effect, with a view to seeking reversal of the earlier ruling.
99 In any event, both witnesses gave evidence on the voir dire. His Honour said:
“I have indicated I will allow the evidence of this witness [PP].”
100 It is this passage (which, it later emerged, was also intended, and taken, to encompass SB’s evidence) that suggests that the earlier ruling, given in the context of the application for leave to cross-examine, incorporated the application for leave to call a case in reply.
101 Admission of the evidence of these two witnesses was governed by s 110 of the Evidence Act, sub ss (2) and (3) of which are in the following terms:
“110. Evidence about character of accused persons
(2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character.
(3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect.”
102 For present purposes, it does not matter whether the appellant’s answer is properly characterised as evidence of general good character, or of good character in a particular respect. (I favour the latter interpretation.) Once the appellant had given that evidence, evidence to rebut his assertion became admissible. In addition, the appellant’s answer may properly be read as making a clear factual claim that he had never been guilty of sexual misconduct with PP. PP’s evidence was to the contrary, and was admissible to rebut the appellant’s factual claim. Whether the evidence was to be admitted or excluded depended upon application of the provisions of ss 135 and 137. The question of possible concoction was relevant.
103 His Honour does not appear to have made an express finding of fact in relation to the concoction issue as it applies to these two witnesses. That it was in his mind, however, and that he was fully alive to its importance, is clear from the earlier ruling (in relation to JS’s evidence), from the basis on which the request for the voir dire (“on the issue of concoction”) was made, and from the terms of the questioning of the witnesses on the voir dire. PP denied ever having discussed his allegations with SB; he denied having discussed the matter, prior to making his statement to police, with anybody at all in any greater detail than talking about “things happened”. SB said that he believed that he became aware of his brother’s (the complainant’s) allegations on the day they were made but said that, although he was aware of the allegations in general terms, he participated in no discussions about the details of what the appellant was alleged to have done.
104 The argument in this court proceeded on the basis that the decision in Hoch governed the admission of this evidence as well as the evidence of JS. Even in its modified application that I have proposed, the considerations in relation to this question are quite different. The Evidence Act provisions are different. The issue of character is dealt with in Part 3.8 of the Evidence Act the relevant sections of which are set out above.
105 Both the cross-examination of the appellant, and the evidence of PP and SB, were admitted as a result of a specific answer deliberately given by the appellant to the jury. The effect of his answer was not only that he was a person of good character, a person of such character as to be unlikely to have behaved in the way the Crown alleged; it specifically conveyed to the jury the assertion that he had had the opportunity to behave towards PP in the way the Crown alleged he had behaved towards the complainant, and had not done so.
106 If Hoch were as all embracing as is suggested on behalf of the appellant, there would be nothing to prevent accused persons from making the most sweeping false claims to good character. The discretion to give leave under s 112 to the Crown to cross-examine, and the exclusion of the tendency rule in s 110, would have no application, at least in cases alleging sexual misbehaviour where the witnesses proposed to be called to rebut character evidence had some association with one another. While procedural laws relating to the conduct of criminal trials focus on ensuring fairness to the accused, they do not require unfairness to the Crown. To prevent the Crown rebutting the appellant’s assertion would have created such unfairness.
107 In my opinion Solomon DCJ correctly approached the question by reference to s 137. Strictly speaking, he should also have considered s 135; however, the exercise of the discretion conferred by that section would, in the light of the s 137 evaluation, inevitably have met with the same result. The question that would have arisen was, in the circumstances of this case, identical to that he did consider. There was no question of the evidence being misleading or confusing, or causing or resulting in undue waste of time; the only remaining question under s 135 was whether the probative value of the evidence was substantially outweighed by the danger that it might be unfairly prejudicial to the appellant. That is the same question that was answered adversely to the appellant under s 137. The decision to admit the evidence having been correctly made, what remained was for his Honour to consider the application of s 136, to limit the use the jury could make of the evidence. This he did. In ruling that he would admit the evidence, he read to counsel, (in the absence of the jury) a draft direction which met with the concurrence of both counsel. His Honour then gave the direction, not once, but at the commencement of the evidence in chief of each witness, in the following terms:
“Members of the jury, the accused has placed material before you about his character. That material is contained in page 594 of the transcript of the case. I will give you the question and answer, which has the capacity of raising the question of character. I will read the question and answer before the question and answer which has the capacity of raising the accused's character.
As to context, the context of the conversation which the accused referred to at the accused’s home between himself, [PP], [his Honour then mentioned the names of the two other persons said to have been present at the conversation of which the appellant spoke], the accused was asked the question:
[his Honour set out the two questions and answers extracted above in para 24]
In light of that evidence, it is open to decide that the accused placed himself before you as a person that because of his character, is unlikely to have committed the crime of which he stands accused. The law gives the accused the right to do this, and you are required by law to consider the evidence of character before you decide whether or not he is guilty.
In answer to this question of character, the Crown intends to place material before you from this witness concerning the character of the accused. The Crown Prosecutor will argue, and has argued before me in your absence, that when you take that evidence into account, along with the matters raised by the accused, the combined effect of the character evidence of the accused is such that it will not help the accused at all. That is, you could not describe him as a person unlikely to commit the crimes alleged. Now it is for you to assess the evidence of the accused and [PP], and to make your own decision as to whether or not the evidence of the accused has the effect that the accused claims for it, and if it does, to what extent it helps the accused.
However, I must emphasise that even if you took the view that the accused is a person of bad character, that must not be used to strengthen the Crown case against him, because you are not entitled to say, ‘because of his bad character, we think he is a person who is likely to have committed the crime.’
On the other hand, having a good character is not a defence to a criminal charge. The weight that you attach to the evidence is a matter for you entirely.”
108 This direction, like the direction extracted in para 87 above, was in substance a direction under s 136 limiting the use that could be made of the evidence, and adhering to the injunction contained in s 95, that evidence admissible for another purpose is not to be used to prove tendency. In my opinion the approach taken by his Honour was completely correct.
109 I should mention also that, in the context of this argument, and with specific reference to the trio of factors nominated by the High Court in Hoch as relevant to a consideration of concoction (relationship, opportunity and motive) senior counsel for the appellant referred to what he described as evidence of animosity from these witnesses to the appellant. He made particular reference to an answer given by SB on the voir dire, in which he said:
“We knew what kind of scumbag [the appellant] was.”
110 He also pointed to some evidence given by PP to the effect that the large extended family had been divided after the complainant’s allegations became known.
111 There is a circularity in this. In Hoch the court referred to evidence of antipathy by one (or more) of the boys concerned to the appellant prior to, and for reasons other than, the subject matter of the specific allegations. Animosity based on the very matters the subject of the charges could hardly be used as a basis for a finding of concoction. There is, other than that referable to the allegations here under consideration, no evidence of any level of hostility or antipathy to the appellant by any of the witnesses called by the Crown.
112 I repeat (see 70) that the exercise on which the trial judge is embarked is a fact finding exercise, as to the possibility (in practical terms) of concoction. The issue is not foreclosed by evidence of opportunity alone. That would justify a finding of possible concoction only if the exercise were directed to the theoretical, speculative or conjectural possibility of concoction. Perhaps it is more clearly expressed as a “real chance” that concoction has in fact occurred: see Colby, para 109-111 and the cases there cited.113 By the fifth ground of appeal it is asserted that the directions in the summing-up given on the question of character were inadequate. The judge gave the jury directions in relation to the evidence of JS, and, later and separately, in relation to the evidence of PP and SB. The directions in relation to the evidence of JS were lengthy but it is useful to set them out. What his Honour said was:
Ground 5 -Character directions
“JS was called because he said that the accused had made an admission to him regarding the accused (sic) activities with the complainant. In order to give that evidence the witness gave evidence about sexual activity involving himself and the complainant. I gave you a very strong direction at the time when [JS] gave the evidence and I remind you of what I said. The evidence was called for a narrow specific purpose at that time and that was for the purpose of the Crown presenting to you what alleged to be an admission. You are not to draw any other conclusion from the evidence apart from an admission. You are not to say that because it is alleged that another young man had sexual relations with the accused that the accused was the sort of person who would commit the crimes alleged against him in the indictment. It would be very wrong of you in law and immoral of you to use the evidence against the accused by saying he was the sort of person who would do that type of thing to the accused. The evidence was given for a narrow specific purpose. [His Honour then reviewed and summarised the evidence given by JS and referred to an inconsistency between his evidence and his mother’s evidence as to the number of people who had been together in the holiday house at the time JS alleged the incident had occurred.] Thus the Culburra beach incident may only be used - when it was given, can only be used as an admission. The evidence has a different quality now than it had then, and the reason the evidence has a different quality now is that during the course of the accused’s evidence in chief he raised the question of character, and I am not going to go through that again, it has been the subject of a direction by me, but in effect what the accused said about his character was that when he had a conversation with [PP] and [the names of the two other boys] that he said words to the effect that he had not done anything with them and also why be any different with [the complainant]. Well, once the accused raised character the Crown was entitled to rebut that, as I have indicated to you. The Crown did not recall [JS] but the Crown relies on the evidence of [JS] to rebut the claim of character raised by the accused.
Now I have said again and I will say again what I said to you yesterday about the way in which you may use the evidence of rebuttal of character. If you take the view the accused is not a person of good character but a person of bad character, in the light of the evidence given by [JS] alone, or [JS] and [SB] and [PP], I must emphasise that that must not be used to strengthen the Crown case in relation to these matters. It would not be entitled to say, “Because we find him to be a person of bad character he is a person who is likely to have committed these crimes.”
114 I take it that the reference to the previous direction was a reference to what was said by his Honour during the course of the trial, when PP and SB gave their evidence, and which has been extracted above.
115 His Honour dealt again with the question of character when he came to reviewing the Crown case in reply. What he then said was this:
“The case that was brought in reply related to alleged sexual activity between the accused [PP] and alleged sexual activity between the accused and [SB]. You have recently seen both of these young men in the witness box and counsel have referred to what they say. [He then reviewed and summarised the evidence of the two character rebuttal witnesses.] But I say again, the evidence of sexual activity, alleged sexual activity between [SB] has been brought in for a specific purpose, that is to answer the question of character and I have given you a direction about character, it cannot be used by you to strengthen the Crown case.”
116 Earlier in the summing-up his Honour had given conventional directions on the use the jury may make of good character, and the restrictions on the use of a conclusion that the appellant was a person of bad character. No complaint is made about these directions.
117 In written submissions it was put to this court that the directions were, “in all the circumstances of the case” inadequate to bring home to the jury the possibility of concoction. Just what should have been said to meet “the circumstances of the case” was not further elucidated either in written or oral submissions, other than by a mention of the family relationship between the three witnesses and the complainant.
118 There is a difficulty in the proposition so advanced. The question of possible concoction arises in the context of similar fact, or tendency evidence, and as a result of Hoch. But Hoch commits that question - that is, the question of the possibility of concoction - to the trial judge as a preliminary issue. A conclusion that such a possibility exists requires the exclusion of the evidence as similar fact evidence. By reason of Colby that position continues to apply to trials conducted in accordance with the Evidence Act on the issue of “probative value” where it arises. That is, a similar approach is to be taken in the consideration of the s 135 discretion and under s 137. The admission of the evidence demonstrates that the possibility of concoction has been eliminated. How then, can a trial judge be expected to give a direction in terms it is now suggested should have been given?
119 It may be, even after admission of the evidence with its antecedent finding of the absence of any real possibility of concoction, that the evidence given in front of the jury leaves open or revives that possibility such as to render a direction on possible concoction appropriate. That will depend upon the facts of any particular case.
120 Here, it was put to JS explicitly that he had fabricated his evidence. Evidence was elicited in cross-examination from all three witnesses of the family relationship, presumably with a view to establishing the opportunity for the three to make false allegations, consistent with one another, against the appellant. In fact, from a reading of the transcript, it would seem that this cross-examination failed to achieve that purpose. PP, in particular, responded to the cross-examiner in (apparently) a most assertive, forceful and even hostile fashion. None of the witnesses acknowledged any occasion on which they had discussed their allegations with one another. Two of them, PP and SB, explained this by referring to their embarrassment and intimidation.
121 Had his Honour directed the jury on the general question of possible concoction, it would have been necessary to include reference, not only to the family relationships that provided opportunity for concoction, but also, in fairness to the Crown, to the evidence of what actually did (or did not) happen. Reminding the jury of that evidence could not have assisted the appellant’s defence.
122 As was acknowledged in the written submissions, no further direction was sought by the appellant’s trial counsel. This may well have been because counsel appreciated that a complete direction on the question of possible concoction could not have assisted his client’s case.
123 I would refuse leave, under rule 4 of the Criminal Appeal Rules, to rely on this ground of appeal.
Ground 6
124 There was one final ground of appeal which can be dealt with quickly. This was ground 6, pleading, in reliance in R v Jones (1998) 191 CLR 439, that the verdict of not guilty on the ninth charge was inconsistent with the verdict of guilty on the other charges.
125 Jones was a case in which the accused faced three charges, two of which resulted in convictions, and one in acquittal. The charges were of unlawful sexual intercourse, and, as is so often the case in relation to such charges, the Crown case depended heavily upon the evidence of the complainant. The High Court could find nothing in the evidence to distinguish the complainant’s credibility, or reliability, in relation to her evidence on the counts of which the accused was convicted from that on which he was acquitted, and held that the jury must be held to experience doubt about her credibility or reliability on that count; and that the accused was entitled to have that doubt translated to the assessment of the complainant’s credibility or reliability on the other counts.
126 That is far from the case here, as can be best explained by an account of the complainant’s evidence on count 9, the count on which the appellant was acquitted. When being asked questions about this charge the complainant began to give some evidence, and then said that he could not really recall what happened. He said there were some incidents that just couldn’t recall, or could not differentiate from others. He said that he remembered having things done to him such as “being groped”, “being … fingered”, but said these events were somewhat confused in his own mind.
127 Far from giving rise to a doubt about the complainant’s credibility, his evidence, and the verdict, show that his frank statement about his confused recollection in relation to this count was supportive of his credibility. Indeed, senior counsel addressed no argument to this ground, acknowledging that it is a ground devoid of “any real strength”. I would reject this ground of appeal.
Application for leave to appeal against sentence
128 The notice of appeal indicates that the appellant’s intention also to seek leave to appeal against sentence. No written or oral submissions were directed to this question. An invitation was forwarded to the appellant’s legal representatives to make written submissions if they wished to do so but no such submissions were received by the court. I would therefore take it that the appellant does not wish to pursue that aspect of the matter. However, I have given consideration, on the material available to, to the sentences imposed, and they seem to me to be well within the available range. I would, in the circumstances, refuse leave to appeal against sentence.
129 DOWD J: I have read the judgment of Simpson J in draft form. I agree with the proposed orders and with her Honour’s reasons therefore.
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