R v Passmore

[2021] NSWCCA 201

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Passmore [2021] NSWCCA 201

Hearing dates:

23 June 2021; final written submissions 26 July 2021

Date of orders:

27 August 2021

Decision date:

27 August 2021

Before:

Payne JA at [1];
Price J at [98];
Wright J at [105]

Decision:

1.  Appeal allowed;

2.  Set aside the decision of the trial judge made on 2 June 2021 (R v Passmore [2021] NSWDC 231) that evidence of the relevant parts of a six-page suicide note written by Mr Passmore on 17 February 2019 (marked as “Exhibit F”) together with related questioning of Mr Passmore in a record of interview dated 21 February 2019 (marked as “Exhibit G”) be excluded;

3.  Set aside the ruling of the trial judge made on 1 June 2021 that evidence from the transcript of the complainant’s police interview on 19 February 2019 that Mr Passmore told her to delete messages (being the answer to Q130 up to and including the answer to Q133) be excluded;

4.  Set aside the ruling of the trial judge made on 31 May 2021 that the evidence of the photograph of a telephone depicting a screen shot of a message sent by Mr Passmore to the complainant’s phone concerning a picture of the complainant in pyjamas (marked as “Exhibit E”) be excluded;

5.  Remit the matter to the trial judge.

Catchwords:

CRIME – appeals – interlocutory appeal – by Crown against ruling on evidence – whether trial judge’s rulings on the admissibility of evidence eliminated or substantially weakened the prosecution’s case – Criminal Appeal Act 1912 (NSW), s 5F(3A)

CRIME – appeals – interlocutory appeal – by Crown against ruling on evidence – standard of review for the exclusion of evidence under ss 55 and 137 of the Evidence Act 1995 (NSW) – correctness standard

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5F(3A), 5F(4), 5F(5)

Criminal Code (Cth), s 474.27A(1)

Evidence Act 1995 (NSW), ss 55, 88, 97, 135, 137

Cases Cited:

Allen v R [2020] NSWCCA 173

CA v R [2017] NSWCCA 324

Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84

DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

House v The King (1936) 55 CLR 499; [1936] HCA 40

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Norman v R [2012] NSWCCA 230

Quinlan v R [2006] NSWCCA 284

R v Chase (a pseudonym) [2018] NSWCCA 71

R v Cook [2004] NSWCCA 52

R v DRF [2015] NSWCCA 181; (2015) 263 A Crim R 573

R v NKS [2004] NSWCCA 114

R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112

R v Toki (No. 3) [2000] NSWSC 999; (2000) 116 A Crim R 536

R v XY [2013] NSWCCA 121

Rogerson v R; McNamara v R [2021] NSWCCA 160

The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17

Texts Cited:

New South Wales Legislative Council, Parliamentary Debates (Hansard), 20 November 2003

Category:

Procedural rulings

Parties:

Crown (Appellant)
Mark William Passmore (Respondent)

Representation:

Counsel:
J Single SC with K Hogan (Appellant)
B Cochrane (Respondent)

Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
CB Criminal Law (Respondent)

File Number(s):

2019/58598

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the complainant’s name or any identifying or potentially identifying information is prohibited.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 231

Date of Decision:

31 May 2021

Before:

Priestley SC DCJ

File Number(s):

2019/58598

HEADNOTE

[This headnote is not to be read as part of the judgment]

Pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW), the Commonwealth Director of Public Prosecutions (“the CDPP”) appealed against three pre-trial evidentiary rulings made by Priestley SC DCJ in the trial of the respondent, Mr Passmore. The respondent is charged with five offences of using a carriage service to transmit a communication to a recipient, being someone who was under 16 years of age, which included indecent material contrary to s 474.27A(1) of the Criminal Code (Cth). It is alleged that the respondent said things that were sexualised and inappropriate during five telephone conversations with the complainant.

In a judgment delivered ex tempore on 31 May 2021, the trial judge excluded evidence of a screenshot of a message from the respondent to the complainant asking her for a picture of her in her pyjamas (“the pyjama picture text”). The CDPP appealed against this ruling on the ground that his Honour erred in failing to find the evidence of the pyjama picture text as relevant context evidence (ground 1). The CDPP disavowed use of the evidence on any other basis, including as tendency evidence.

In a second judgment delivered ex tempore on 1 June 2021, the trial judge addressed an objection to the admissibility of the complainant’s evidence that the respondent told her to delete text messages. The trial judge excluded the evidence pursuant to s 137 of the Evidence Act 1995 (NSW). The CDPP appealed against this ruling (ground 2).

In a third judgment, delivered on 2 June 2021, the trial judge excluded evidence of a suicide note and related questioning of the respondent in a record of interview pursuant to s 137 of the Evidence Act. The CDPP appealed against that decision on the grounds that his Honour erred in failing to find that the statements contained in the suicide note and record of interview were admissions (grounds 3(a)-(b)), in failing to find that the respondent’s conduct in writing the suicide note and in the record of interview amounted to post-offending conduct exhibiting a consciousness of guilt (ground 3(c)), and in refusing to admit the evidence under s 137 of the Evidence Act (ground 3(d)).

The Court (Payne JA, Price and Wright JJ) held, unanimously allowing the appeal on grounds 2 and 3(d) and by majority allowing the appeal on ground 1:

As to the jurisdictional precondition in s 5F(3A)

1. The jurisdictional precondition to the engagement of the statutory power of interlocutory appeal by the CDPP against a decision or ruling on the admissibility of evidence is a finding that the decision of ruling “eliminates or substantially weakens” the prosecution’s case (Criminal Appeal Act1912 (NSW), s 5F(3A)). R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 should not be read as deciding more than what was in issue in that case. The conclusion in that case that “evidence of cogency or force” is required is not a substitute for the statutory language: [12]-[16] (Payne JA); [98] (Price J).

R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112, considered. R v Chase (a pseudonym) [2018] NSWCCA 71 at [5]-[8], applied.

As to the appropriate standard of review

2. A trial judge’s assessment of whether evidence is relevant (Evidence Act, s 55) or whether it must be excluded under s 137 of the Evidence Act involves an evaluative decision about which there is only one correct answer. The standard of appellate review in relation to rulings under s 137 and rulings about admissibility based on relevance is the correctness standard identified in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9: [28]-[29] (Payne JA); [98] (Price J); [106] (Wright J).

Rogerson v R; McNamara v R [2021] NSWCCA 160; The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [34], applied.

As to the admissibility of the suicide note and responses to questions (ground 3)

3. The evidence was capable of being seen as compelling evidence of admissions made by the respondent about the indecent remarks he is alleged to have made and a consciousness of guilt. The danger of unfair prejudice did not outweigh the significant probative value of the evidence. The evidence should not have been excluded under s 137 of the Evidence Act. The exclusion of the evidence substantially weakened the Crown case: [43]-[45], [49], [50] (Payne JA); [98] (Price J); [107] (Wright J).

The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [95]; IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [47], applied.

As to whether the evidence about deletion of messages was relevant (ground 2)

4. The evidence was relevant to circumstantial proof of the Crown case. Its significant probative value was not outweighed by the danger of unfair prejudice. It should not have been excluded under s 137. The absence of the evidence substantially weakened the Crown case: [65]-[69] (Payne JA); [98] (Price J); [107] (Wright J).

As to the evidence of the pyjama picture text (ground 1)

5. The evidence was relevant as context evidence to establish the covert or secret nature of the relationship between the complainant and the respondent: [89] (Payne JA); [99] (Price J); [115] (Wright J).

Per Price and Wright JJ:

6. Any attempt to finely categorise or label the evidence as relationship or context evidence obscures the principal question of relevance: [99] (Price J); [108], [118] (Wright J).

Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17 at 344, applied.

7. The relevance of the pyjama picture text was not limited to establishing the covert or secret nature of the relationship between the complainant and the respondent. The evidence was capable of showing the commencement of the period starting in January 2019 when the respondent’s messages began to make the complainant uncomfortable. The evidence was fundamental to the jury’s understanding of the relationship and the change in that relationship. The probative value of the evidence taken at its highest was significant. The exclusion of the evidence would substantially weaken the Crown case: [100]-[103] (Price J); [108], [114], [117] (Wright J).

Per Payne JA (dissenting):

8. If the evidence was tendered as evidence showing “an inappropriate sexual interest in the complainant” or the “commencement” of that “inappropriate sexual interest”, it was not admissible as relationship evidence but would only be admissible as tendency evidence. The CDPP expressly disavowed use of the evidence on that basis. On the limited basis upon which the evidence was tendered, as context evidence establishing the covert or secret nature of the relationship, the rejection of the evidence did not substantially weaken the Crown case: [89]-[92], [94]-[95] (Payne JA).

Norman v R [2012] NSWCCA 230; DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206 at [39], applied.

Judgment

1. PAYNE JA: In accordance with the usual practice of the Court in interlocutory appeals, until the conclusion of the jury trial in this matter this judgment will be distributed only to the parties and will be available electronically only on the restricted “JIRS” database.

2. Pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW), the Commonwealth Director of Public Prosecutions (“the CDPP”) appeals against three elements of pre-trial evidentiary rulings made by Priestley SC DCJ (“the trial judge”) in the trial of Mr Passmore, the respondent, which had been listed to commence on 31 May 2021. Regrettably, by reason of this interlocutory appeal, the respondent’s trial was vacated and is now listed to commence on 15 November 2021.

3. A noteworthy feature of the CDPP’s interlocutory appeal is that the trial judge, over at least three days, in a series of carefully constructed judgments, two of which were given ex tempore, dealt with a myriad of evidential issues in an attempt to ensure that the trial proceeded smoothly in May 2021. Some of the submissions made to this Court in the interlocutory appeal were not put to the trial judge by the CDPP with the clarity his Honour was entitled to expect. The extent to which I have in some respects reached a different view to his Honour is a function of the much more detailed submissions made to this Court by the CDPP than those that were made below. Nothing in what follows should be understood as critical of the trial judge.

Background to the interlocutory appeal

4. The respondent is charged with five offences of using a carriage service to transmit a communication to a recipient, being someone who was under 16 years of age, which included material that is indecent contrary to s 474.27A(1) of the Criminal Code (Cth). The Crown alleges that:

1. on or about 7 February 2019, in a telephone call to the complainant the respondent said words to the effect of “my cock was hard and my pants got wet” (count 1);

2. on or about 8 February 2019, in a telephone call to the complainant the respondent said words to the effect of “my cock is hard”. In the alternative, there was a reference to his being excited or aroused (count 2);

3. on or about 10 February 2019, in a telephone call to the complainant the respondent said words to the effect of “my cock is hard”. In the alternative, there was a reference to his being excited or aroused (count 3);

4. on or about 11 February 2019, in a telephone call to the complainant the respondent said words to the effect of “my cock is hard”. In the alternative, there was a reference to his being excited or aroused (count 4); and

5. on or about 12 February 2019, in a telephone call to the complainant the respondent said words to the effect of “my cock is so hard it hurts” (count 5).

5. The trial judge was asked to make a number of pre-trial rulings about the admissibility of evidence. Many are not the subject of an appeal. In a judgment delivered ex tempore on 31 May 2021, the trial judge excluded evidence of a screenshot of a message from the respondent to the complainant asking her for a picture of her in her pyjamas (“the pyjama picture text”). The CDPP appeals against this ruling on the ground that his Honour erred in failing to find the evidence of the pyjama picture text as relevant context evidence (ground 1). The CDPP disavowed use of the evidence on any other basis, including as tendency evidence.

6. In a second judgment delivered ex tempore on 1 June 2021, the trial judge addressed an objection to the admissibility of part of the complainant’s evidence. That evidence was that the respondent told her to delete text messages. The trial judge found that this evidence related to the pyjama picture text and that it was relevant but of low probative value. The trial judge excluded the evidence pursuant to s 137 of the Evidence Act 1995 (NSW). The CDPP appeals against this ruling on the ground that his Honour erred in failing to find that the evidence was admissible (ground 2).

7. In a third judgment, delivered on 2 June 2021, the trial judge excluded evidence of a suicide note and related questioning of the respondent about the suicide note in a record of interview. The trial judge found the evidence not to be of a high probative value. The probative value was outweighed by unfair prejudice. The trial judge excluded the evidence pursuant to s 137 of the Evidence Act. The CDPP appeals against this decision on the following grounds:

1. his Honour erred in failing to find that the statements contained in the suicide note are admissions (ground 3(a));

2. his Honour erred in failing to find that the statements recorded in the record of interview are admissions (ground 3(b));

3. his Honour erred in failing to find that the conduct of the respondent in writing the suicide note and in the record of interview amounts to post-offending conduct exhibiting a consciousness of guilt (ground 3(c)); and

4. his Honour erred in refusing to admit the evidence under s 137 of the Evidence Act (ground 3(d)).

The Crown case

8. The complainant, aged 15 at the time of the alleged offending, is the [redacted] of the respondent, who was aged 66 at that time. The complainant’s parents separated when the complainant was a young child and the complainant and the respondent did not communicate for some years. In about September or October 2018, the respondent's wife ran into the complainant and her mother at a shopping centre. Following this meeting the families reconnected.

9. In late November 2018, the complainant rang the respondent’s wife and arranged for her to visit. The respondent and his wife took the complainant to lunch. Before 17 December 2018, the complainant visited the respondent and his wife at their house. There may have been another visit in early January 2019.

10. On or about 22 January 2019, the complainant slept at the respondent’s house. On another occasion the respondent provided the complainant with transport. On 4 February 2019, the complainant commenced karate lessons with the respondent, who was an instructor at his own dojo. The complainant attended subsequent karate lessons on 6 February 2019 and 11 February 2019.

11. There was a good deal of electronic communication between the complainant and the respondent in January and February 2019. There is no doubt that the telephone calls the subject of the five counts described at [4] above took place between 7 and 12 February 2019. The issue in the trial is whether the alleged indecent words were said by the respondent. The only direct evidence of the content of the telephone calls is the evidence of the complainant.

Jurisdictional precondition – s 5F(3A) Criminal Appeal Act

12. The jurisdictional precondition to the engagement of the statutory power of interlocutory appeal by the CDPP against a decision or ruling on the admissibility of evidence is a finding that the decision or ruling “eliminates or substantially weakens” the prosecution’s case. Section 5F(3A) of the Criminal Appeal Act provides:

5F Appeal against interlocutory judgment or order

…

(3A)   The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case.

13. In the Second Reading Speech in Parliament introducing the amendment to the Criminal Appeal Act the Minister said (New South Wales Legislative Council, Parliamentary Debates (Hansard), 20 November 2003 at 5427-5428):

“If an acquittal results from an erroneous evidentiary ruling, the Crown has no avenue of appeal against the acquittal. The Crown should therefore be able to test the correctness of such a ruling made during the trial, so that an accused may not derive the benefit of an acquittal secured as a result of an erroneous evidentiary ruling.

It is not desirable that criminal trials be unnecessarily disrupted for the purpose of appealing evidentiary rulings. It is therefore anticipated that the Crown would exercise this new appeal power only sparingly.”

14. In R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112, Spigelman CJ (with whom Simpson J and Adams J agreed) said:

“[27]   The appellant contends that the ruling excluding the evidence substantially weakens the prosecution’s case. The respondent contends that that is not so. This constitutes a challenge to the jurisdiction of the Court.

[28] Section 5F(3A) was introduced by the Crimes Legislation Further Amendment Act 2003. The pre-existing right of appeal by the Crown in s 5F(2) of the Criminal Appeal Act 1912 has been interpreted so as not to extend to rulings which merely weaken but do not destroy the Crown case.

[29]   In accordance with the authorities, this Court must assess the Crown case in order to determine whether or not the excluded evidence substantially weakens it. (See, for example, R v NKS [2004] NSWCCA 144 at [17]; R v Lameri [2004] NSWCCA 217 at [35]-[36]; R v Milakovic [2004] NSWCCA 199 at [10] and [31].)

[30]   The Crown bears the onus of establishing that the exclusion of the evidence substantially weakens its case.”

15. Spigelman CJ’s dispositive reasoning on the jurisdictional question was as follows:

“[37]   The respondent’s submission which directs attention to the remaining Crown evidence – telephone, car, relationship, the name ‘Leonard’ – is a case that is of some substance. However, a clear forceful and unhesitating identification on the first occasion by the victim is evidence of particular force. Its absence will, in my opinion, ‘substantially weaken’ the Crown case. Even a case which is otherwise likely, even very likely, to succeed, may still be ‘substantially weakened’, if evidence of cogency or force is withheld.

[38]   As noted above, counsel for the respondent submitted that the evidence of identification was itself so weak that its absence could not be said to substantially weaken the Crown case. In my opinion, this approach is not appropriate.

[39] The issue is similar to that which arises when determining the probative value of evidence in the context of the application of s 137 of the Evidence Act, to which I will refer below. The jurisdictional issue posed for this Court under s 5F(3A) of the Criminal Appeal Act is not intended to involve an inquiry into the weight to be given to the evidence excluded. Questions of weight are for the jury. The section directs attention to ‘the prosecution’s case’, to be considered as a ‘case’. This section is not concerned with the weight of the Crown’s evidence.

[40]   This Court should determine whether or not a ruling on the admissibility of evidence ‘substantially weakens’ the Crown case by asking whether or not that would be the effect, on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury. It is not desirable for this Court to undertake an investigation into the weight of the evidence based on credibility or reliability considerations.”

16. The identification by Spigelman CJ in Shamouil of excluded evidence which, in that case, “substantially weakened” the Crown case, should not be read as deciding more than what was in issue in that case. The conclusion in Shamouil that “evidence of cogency or force” is required is not a substitute for the statutory language. This was explained in R v Chase (a pseudonym) [2018] NSWCCA 71, where Basten JA (with whom Johnson J and Campbell J agreed) said:

“[5]   The parties were in agreement that the relevant approach to the jurisdictional question was that identified by Spigelman CJ in R v Shamouil, where the Chief Justice said:

‘This Court should determine whether or not a ruling on the admissibility of evidence “substantially weakens” the Crown case by asking whether or not that would be the effect, on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury. It is not desirable for this Court to undertake an investigation into the weight of the evidence based on credibility or reliability considerations.’

[6]   As explained in Shamouil, the exercise required in applying s 5F(3A) is similar to that required in ruling on the admissibility of evidence under s 101(2) or s 137. It is now accepted that an assessment of weight based on credibility and reliability (subject to the condition that the evidence be fit to be left to the jury) is not merely ‘not desirable’, it is an assessment the court does not undertake. None of this was controversial, for reasons which will appear.

[7]   More controversial was the proposition in Shamouil that, ‘[e]ven a case which is otherwise likely, even very likely, to succeed, may still be “substantially weakened”, if evidence of cogency or force is withheld.’ This passage has been taken as a legal principle that, so long as the evidence has significant probative value, its rejection will substantially weaken the prosecution case. The Crown Advocate referred this Court to statements in R v SJRC and to R v Matonwal and Amood, where Bathurst CJ said that, ‘as the evidence has significant probative value, it follows that its exclusion substantially weakens the prosecution case for the purposes of s 5F(3A) of the Criminal Appeal Act.’

[8]   The submission ventures perilously close to the fallacy of taking a statement from a judgment out of its factual context and presenting it as a statement of legal principle. The statutory test is whether the rejection of the evidence ‘eliminates or substantially weakens the prosecution’s case.’ It would be wrong to substitute a test which is satisfied merely where the rejected evidence has significant probative value. Often, the removal of evidence having significant probative value will substantially weaken the prosecution case; but not necessarily. In fact some tendency evidence may only have significant probative value when assessed in the context of other evidence. In short, the tests are neither equivalent nor co-extensive.” (Footnotes omitted.)

Standard of review in this appeal

17. As to the standard of review to be applied, in written submissions filed for the interlocutory appeal the CDPP and the respondent each accepted that the appropriate standard of review for the exclusion of evidence under s 137 of the Evidence Act was House v The King (1936) 55 CLR 499; [1936] HCA 40. The appeal was argued on that basis.

18. Subsequent to the hearing of this appeal, on 16 July 2021, this Court handed down its decision in Rogerson v R; McNamara v R [2021] NSWCCA 160 (a joint judgment of Bell P, R A Hulme and Beech-Jones JJ). In that case there is an important passage that makes clear that House v The King is not the appropriate standard of review for s 135 of the Evidence Act and that the cases which had held that it was should no longer be followed:

“[542] On the assumption, which we consider to be correct, that the trial judge had power to exclude evidence of the two conversations pursuant to s 135(a), McNamara challenged the correctness of the trial judge’s decision to exclude that evidence. The Crown asserted that the review of the trial judge’s decision in this regard should be by reference to the House v The King standard (the view stated in R Weinstein et al, Uniform Evidence Law in Australia (3rd ed, 2020, LexisNexis) at [135-17]) whilst McNamara contended, by analogy with [The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40] at [61], that it was for this Court itself to determine whether or not the probative value of the excluded evidence was substantially outweighed by the danger that the evidence might be unfairly prejudicial to Rogerson, and not simply to consider whether it was open to the trial judge to conclude that it was.

[543]   What the High Court said in Bauer at [61] was that:

‘The question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ. Consequently, in an appeal against conviction to an intermediate court of appeal, or on a subsequent appeal to this Court, it is for the court itself to determine whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was.’

[544] Just as the assessment of probative value under s 97 and probative value and prejudicial effect under s 101(2) of the Evidence Act involves the making of an evaluative judgment as opposed to an exercise of judicial discretion (see R v Cook [2004] NSWCCA 52 at [38]; R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 at [63]; BC v R [2019] NSWCCA 111 at [60]; Taylor v R [2020] NSWCCA 355 at [122(xix)]; Vagg v R [2020] NSWCCA 134 at [45]), so too does a trial judge’s assessment of whether or not to exclude evidence under s 135 of the Evidence Act. That has implications for the standard of appellate review and what the High Court said in Bauer at [61] in relation to s 97 of the Evidence Act must apply equally to s 135.

[545]   To this extent, earlier decisions of this Court to the effect that House v The King supplied the appropriate standard for review on a conviction appeal in relation to an evidentiary ruling under s 135(a) of the Evidence Act or that such a ruling involved the exercise of a discretion must no longer be regarded as good law: see, for example, R v BWM (1997) 91 A Crim R 260 at 266; R v Glossop [2001] NSWCCA 165 at [53]; R v Taylor [2003] NSWCCA 194 at [130], using the language that it was ‘open’ to the trial judge to have reached the discretionary decision he did under s 135; Australian Securities and Investments Commission v Rich (2005) 54 ACSR 326; [2005] NSWCA 152 at [163]; Vickers v The Queen (2006) 160 A Crim R 195; [2006] NSWCCA 60 at [76] (‘[s]ince the questions under s165(4) and s135 involved discretionary determinations, those determinations may only be reviewed on appeal on the principles stated in House v The King’); Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21 at [49]; R v SJRC [2007] NSWCCA 142 at [34]; Dyldam Developments Pty Ltd v Jones [2008] NSWCA 56 at [79]; James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18 at [29]-[32].

[546]   McNamara’s submission as to the appropriate standard of appellate review is also supported by Bell P’s observation in Taylor v R at [113] and that of Basten JA in Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 at [39] where his Honour said, in the context of appellate review of a tendency ruling under s 101(2) of the Evidence Act, that ‘[t]his Court must decide for itself whether, in the terms of the section, “the probative value of the evidence substantially outweighs any prejudicial effect”’; see also Riley v R [2011] NSWCCA 238 at [161]-[162]. RDT was an appeal under s 5F of the Criminal Appeal Act and it is to be noted that both Johnson J (at [55]) and R A Hulme J (at [59]) refrained from expressing a view on the standard of appellate review on the basis that it was not fully argued and was unnecessary to decide in the circumstances of that case as their Honours were satisfied on either basis that the trial judge erred in his consideration and determination of the question of admissibility of the evidence.

[547]   Basten JA’s analysis in RDT was adopted in Sidaros v The Queen (2019) 15 ACTLR 64; [2020] ACTCA 11 at [38]. Basten JA’s dissenting view in R v Zhang (2005) 158 A Crim R 504; [2005] NSWCCA 437 at [45], to the same effect as his judgment in RDT, was also cited with approval by the High Court in Bauer at [61].

[548]   It should be remembered that, in applying the correctness standard of appellate review, an appellate court may be subject to ‘natural limitations’ that exist when such an exercise is undertaken: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [34]. These may include the lack of the advantage enjoyed by a primary judge in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole: Fox v Percy at [23]; CSR Ltd v Della Maddalena (2006) 224 ALR 1; [2006] HCA 1 at [17]; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3 at [90]. That is of some significance in the present case when it is recalled that the ruling under s 135(a) of the Evidence Act in relation to the two conversations occurred on day 50 of the trial.”

19. The parties were invited to make additional written submissions about whether this conclusion affected the present case. On 26 July 2021, each party made submissions.

20. The CDPP submitted, following the decision in Rogerson, that the question in this appeal is not whether it was open to the trial judge to conclude as he did under ss 55 and 137 of the Evidence Act, but rather whether his Honour was correct in the conclusions he reached. The CDPP submitted that both ss 135 and 137 of the Evidence Act involve the making of an evaluative judgment. Section 137, unlike s 135, mandates that once that evaluation is conducted, the Court “must” refuse to admit the evidence. It was submitted that s 135, which provides that the court “may” refuse to admit evidence, still allows for judicial discretion to be exercised once the evaluation is conducted. The respondent agreed that because the assessment of prejudice and probative value for the purposes of s 137 involves an “evaluative judgment”, the reasons in Rogerson with respect to s 135 apply equally to s 137.

21. The CDPP further submitted that where an appeal is by way of rehearing (as here; see ss 5F(4) and 5F(5) of the Criminal Appeal Act), the appellate court must “give the judgment which in its opinion ought to have been given in the first instance”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [30] per Gageler J (with whom Edelman J relevantly agreed: see at [153]), quoting Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23] (Gleeson CJ, Gummow and Kirby JJ).

22. The CDPP submitted that unless a s 5F(3A) appeal concerns an issue of procedure or a “discretionary” determination, provided that the appellate court observes the “natural limitations” of the record, it “cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions”: SZVFW at [32] (Gageler J, quoting Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84 at 564) and [153] (Edelman J). In those circumstances, the appellate court is not required to find House v The King error in order to intervene. On the other hand, where a s 5F(3A) appeal is against a “discretionary” decision, then it will be necessary for the appellate court to be satisfied of House v The King error.

23. The respondent drew attention to [548] of Rogerson and submitted that the trial judge enjoyed an advantage over this Court in having the opportunity to consider the entirety of the evidence received at trial. The respondent submitted that, when making its own evaluative judgment, this Court would arrive at the same conclusions as the trial judge as to the need to exclude the evidence that the respondent told the complainant to delete text messages and the evidence of the suicide note and related questioning under s 137.

24. The respondent urged caution in too readily concluding that any potential prejudice suffered by the respondent could necessarily be cured by direction, citing Allen v R [2020] NSWCCA 173 at [150]-[153] (Button J).

25. To appreciate the issue here, it will be recalled that s 55 of the Evidence Act provides:

55 Relevant evidence

(1)   The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2)   In particular, evidence is not taken to be irrelevant only because it relates only to—

(a)   the credibility of a witness, or

(b)   the admissibility of other evidence, or

(c)   a failure to adduce evidence.

26. The subject of the passages from Rogerson addressed by the above submissions, s 135 of the Evidence Act, provides:

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—

(a)   be unfairly prejudicial to a party, or

(b)   be misleading or confusing, or

(c)   cause or result in undue waste of time.

27. The section under which the trial judge proceeded in the present case, s 137 of the Evidence Act, provides:

137 Exclusion of prejudicial evidence in criminal proceedings

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.

Conclusion on standard of review

28. I have concluded that a trial judge’s assessment of whether evidence is relevant (s 55) or whether evidence must be excluded under s 137 of the Evidence Act involves an evaluative decision about which there is only one correct answer, albeit that reasonable minds may sometimes differ. The implication of that conclusion for the standard of appellate review in the present case is that the standard identified in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 applies. The standard identified in Warren v Coombes, applicable to a civil appeal by way of rehearing, was identified in the following passage at 552 (Gibbs ACJ, Jacobs and Murphy JJ):

“The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.”

29. Decisions prior to Bauer and Rogerson to the effect that House v The King supplied the appropriate standard of review on an appeal in relation to an evidentiary ruling under s 137 of the Evidence Act must no longer be regarded as good law. The same conclusion applies in relation to rulings about admissibility of evidence based on relevance; the correctness standard as explained in Warren v Coombes applies. In applying the correctness standard, an appellate court may be subject to “natural limitations” that exist when such an exercise is undertaken: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [34].

30. I will address the appeal in a reverse order to the way the submissions were framed so as to deal with the excluded evidence in order of its importance to the Crown case.

Ground 3: error in failing to admit the respondent’s suicide note and responses to questions during the execution of a search warrant as admissions and/or post-offending conduct exhibiting a consciousness of guilt

31. On 2 June 2021, the trial judge made an order excluding evidence of a six-page suicide note written by the respondent on 17 February 2019 (marked as “Exhibit F”) together with related questioning of the respondent in a record of interview dated 21 February 2019 (marked as “Exhibit G”): R v Passmore [2021] NSWDC 231.

32. Objection was taken to the following passages in the suicide note:

“Yes!! I said [there is a diagonal strike through the word ‘said’] text some awful words, but never asked for, suggested or touched anyone, nor did I ask for any rude photos at all.

…

But the truth that I text a young girl will kill all three of them”.

33. Objection was also taken to two passages from the record of interview. The first passage, in which V8 is a reference to the examining police officer and V2 is a reference to the respondent, provides as follows:

“V8:   Yeah, sure. Okay. So, in this note you made references to a couple of, um, subject matters. Um and I’d like to ask you in relation to that where you said um ‘I text some awful words but never asked for, suggested or touched anyone nor did I ask for any rude photos …

V2:   Correct

V8:   … At all’. Is that what …

V2:   that’s right

V8:    … its says?

V2:   correct

V8:   Um, what are you referring to when you say that?

V2:   about the conversation we had with [the complainant]”.

34. The second passage from the record of interview records a series of questions and answers in relation to the suicide note and how the respondent came to be electronically communicating with the complainant. The Crown sought to rely on the respondent’s reference during the interview to “conversations with [the complainant]”.

35. There were two principal issues before the trial judge. The first was whether it was reasonably open for the jury to conclude that the evidence contained an admission (s 88 of the Evidence Act) or demonstrated a consciousness of guilt (see generally R v Cook [2004] NSWCCA 52 per Simpson J). The second was whether the probative value of the evidence was outweighed by the danger of unfair prejudice (s 137 of the Evidence Act).

The trial judge’s decision

36. The trial judge considered the suicide note at [10]-[13] of the 2 June judgment. His Honour concluded that whilst the suicide note contained words amounting to an admission to sending texts, it was not on its own capable of constituting an admission about speaking indecent words over the phone. His Honour noted at [14] that the matter “does not rest there”. The trial judge referred to the record of interview together with a statement of the respondent’s wife (marked as “Exhibit H”) and concluded that by a combination of the suicide note, record of interview and statement, it would be open for the jury to find that indecent words had been spoken in electronic communications by telephone, as indicated by the reference to having “text[ed] some awful words” to the complainant.

37. At [19], the trial judge found:

“[19]   By the same reasoning this proposed evidence is also ‘capable of being seen as indicating consciousness of guilt of the specific offence with which the accused is charged’; see Cook at [23].”

38. The trial judge concluded that:

1. the evidence of the alleged admission and of conduct evidencing a consciousness of guilt is evidence that should be left to the jury;

2. the probative value of the evidence is low;

3. the first danger of unfair prejudice is that even if the jury were not satisfied beyond reasonable doubt of the respondent having committed the charges alleged, his admitted communication of “awful words” may colour their view so that they proceed to convict for that other conduct. The jury may reason that allegations are being made, he is admitting them and therefore a conviction should follow;

4. the second danger of unfair prejudice is the need to go into an explanation of the respondent’s conduct in respect of certain matters, which would inevitably lead to a highlighting of evidence which has been ruled to be inadmissible in earlier rulings and other discreditable conduct not likely to otherwise be in evidence;

5. the danger of unfair prejudice cannot be adequately met by an appropriately worded direction;

6. the probative value of the evidence is outweighed by the danger of unfair prejudice to the respondent; and

7. accordingly, the evidence should be excluded under s 137 of the Evidence Act.

Consideration of ground 3

39. Grounds 3(a) and 3(b) may be disposed of shortly. Section 88 of the Evidence Act provides:

88 Proof of admissions

For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.

40. Contrary to the CDPP’s submission, the trial judge concluded that the statements contained in the suicide note, together with other evidence in the Crown case, were capable of being understood by the jury as admissions and as evidencing a consciousness of guilt. His Honour also concluded that the relevant parts of the record of interview, in the context of the Crown case as a whole, were capable of being understood as admissions. The question agitated by the CDPP of whether, examined on their own, either Exhibit F or Exhibit G was an admission or evidenced a consciousness of guilt is an arid one. Ground 3(c) also proceeds on the same false basis. The trial judge accepted that, in the context of the Crown case, the evidence was capable of evidencing a consciousness of guilt.

41. The real question is whether, as the CDPP contends, the trial judge erred in excluding the evidence in reliance on s 137 of the Evidence Act. I have concluded that the evidence should not have been excluded under s 137.

42. The probative value of the evidence must be assessed, for the purposes of s 137, at its highest. This conclusion flows by analogy with The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [95] and IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [47].

43. As I have said, the Warren v Coombes or correctness standard of review is the appropriate one. In context, and taking the Crown case at its highest, the evidence objected to in the suicide note (Exhibit F) and the record of interview (Exhibit G) was highly probative. I do not agree with the finding that it was “more likely that a jury would not come to [a conclusion that Exhibits F and G were admissions] than it is that they would”. Respectfully, this finding does not approach the question of the identification of the probative value of the evidence from the correct perspective, namely, taking the Crown case at its highest. At their highest, the suicide note (Exhibit F) and the record of interview (Exhibit G) are capable of being seen as compelling evidence of admissions made by the respondent about the indecent remarks he is alleged to have made and, even more so, of a consciousness of guilt.

44. Despite the fact that a key word relevant to the precise charges is struck through, a jury may well conclude on the basis of the Crown case as a whole that Exhibits F and G contain a devastating admission of criminal guilt and cogent evidence of consciousness of that guilt.

45. The unfair prejudice relied upon by the respondent does not outweigh that significant probative value. I do not agree with the trial judge’s assessment that the danger of unfair prejudice outweighs the probative value of the evidence.

46. The first danger of unfair prejudice identified is that even if the jury are not satisfied beyond reasonable doubt of the respondent having spoken the words alleged, his admitted communication of “awful words” may colour the jury’s view so that the jury convicts him. I do not regard that danger as significant and, in any event, the jury will be given a warning not to reason in this way.

47. The second danger of unfair prejudice identified is that the respondent will need to explain his conduct which would inevitably lead to a highlighting of evidence ruled to be inadmissible together with other discreditable conduct not otherwise likely to be in evidence. Other than the evidence the subject of grounds 1 and 2 (and a general reference to unidentified excluded tendency evidence), no real explanation was proffered by the respondent of the evidence said to give rise to unfair prejudice in this respect. The circumstances in R v Cook [2004] NSWCCA 52 are thus distinguishable from the present case. Unlike in Cook, no evidence was sought to be led in this case on the voir dire to show what would be required to qualify or explain the Crown’s evidence. In Cook it was clear that the accused would be required, in order to explain the evidence, to expose himself as a person with a criminal record and a history of violence against women.

48. I do not think that the fact the respondent will need to “contend before the jury for an alternative inference arising from the suicide [note] and admissions, inconsistent with guilt” necessarily gives rise to unfair prejudice. In Quinlan v R [2006] NSWCCA 284, McClellan CJ at CL (with whom Tobias JA and Hoeben J agreed) held that there was no rule of law to the effect that evidence of consciousness of guilt, in that case of flight, should be excluded because an explanation for the flight may be prejudicial:

“[17]   The appellant contended that the evidence gave rise to unfair prejudice because he was required to explain that he had been shot at by the police some years before, which was suggestive of tension in the past between himself and the police.

[18]   To this submission the Crown, in my opinion correctly, responds that there is no rule of law which says that evidence of flight should be excluded because the appellant’s explanation for the flight might reveal other evidence which may be prejudicial to the appellant …”

49. Finally, I respectfully disagree with the trial judge and am satisfied that any danger of unfair prejudice could appropriately be accommodated by directions to the jury regarding consciousness of guilt of the kind described in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, tailored to fit the circumstances of the case.

50. The probative value of this evidence, taken as I have said at its highest, was significant. The excluded evidence in Exhibits F and G set out above is potentially very important evidence for the Crown. I have concluded that the Crown case was substantially weakened by the exclusion of that evidence and thus the jurisdictional threshold is met. Ground 3(d) should be upheld.

Ground 2: that the trial judge erred in failing to find that evidence of the deletion of messages was relevant

51. Ground 2 concerns the admissibility of the following italicised evidence from the transcript of the complainant’s police interview on 19 February 2019. It was agreed that the non-italicised answer and question would be deleted:

“A   ‘Cause like, he’d keep deleting the conversation, so no-one would find it.

Q130   OK. So he would delete it. Does that mean it’s deleted for you as well or something else?

A   Like, I’d, like, he told me to delete everything.

Q131   OK. And did you do that?

A   (NO AUDIBLE REPLY)

Q132   And what does that mean when you nod?

A   Yeah. I, I did.

Q133   OK. Why?

A   ‘Cause I didn’t want to think about it.”

Trial judge’s ruling

52. The trial judge summarised the argument for the respondent as follows:

1. this case concerns words spoken over the telephone, and they are not something you can delete;

2. the evidence suggests there are communications between the complainant and the respondent that include material that made the complainant feel uncomfortable, suggesting some kind of sexualised behaviour;

3. by asking the complainant to delete the texts, the relevance can only be that there is something in those messages that caused the respondent to want to remove them, suggesting a consciousness of guilt. The respondent submitted that, although he might have been feeling consciously guilty about something, it was not the charged acts because those acts do not appear in texts;

4. this was another attempt to benefit from the texts that were ruled inadmissible on 31 May, the subject of ground 1 of the appeal. The pyjama picture text was a matter dealt with immediately prior to the questions subject to the current evidence challenge;

5. the material in question has no relevance because if it relates to the pyjama picture texts, and those texts are inadmissible, it follows that evidence of the request for their deletion would be similarly inadmissible; and

6. in the context of the trial and the charges, there must be a real prospect that the jury would think that the respondent, an elderly man who had asked a young girl to delete texts, had been sending inappropriate texts to her and asked her to delete them.

53. The trial judge summarised the argument for the Crown as being that while there was no suggestion that there was any inappropriate or indecent content in the text messages being deleted, the evidence nevertheless suggested a consciousness of guilt and that the respondent was trying to disguise the extent of the relationship between them.

54. The trial judge held that there was a real likelihood that the jury would reason in the way the respondent submitted. The trial judge accepted the s 137 submission and excluded the evidence because its probative value, which was not very high, was outweighed by the danger of unfair prejudice to the respondent.

Submissions on appeal

55. First, the CDPP submitted that the evidence challenged could not be narrowed to refer only to the pyjama picture text, as the complainant said that the respondent “told me to delete everything.” To narrow the evidence in that way such that it had no relevance and was not admissible was said to be an error.

56. Secondly, the CDPP submitted that the trial judge did not consider any of the other evidence of the complainant and as such failed to give weight to relevant considerations. For example, additional answers given by the complainant and not quoted by the trial judge were relevant in assessing whether the evidence was capable of rationally affecting the assessment of the probability of the existence of a fact in issue.

57. Thirdly, the CDPP submitted that the trial judge did not address why any unfair prejudice to the respondent could not be cured by directions to the jury.

58. Fourthly, the CDPP submitted that the trial judge made assumptions about the content of the messages being deleted without having regard to the evidence of what was contained in the messages. The complainant had stated that nothing indecent was said but rather the messages made her feel uncomfortable as the respondent was discussing boys with her. The trial judge therefore failed to have regard to relevant considerations and gave weight to irrelevant ones. The CDPP submitted that a direction could have been given to the jury to cure any potential prejudice and to ensure that the jury did not otherwise speculate about the content of the messages.

59. Fifthly, the CDPP submitted that there was no basis for the trial judge’s finding that the CDPP sought to tender this evidence as a way to “resuscitate” the pyjama picture text evidence.

60. The respondent submitted that if the request to delete messages related to a text that was itself inadmissible, then so too would be the request to delete it. The respondent accepted that the trial judge contemplated that the request related to other texts, the content of which was unknown.

61. The respondent said that there was no basis for the CDPP’s submission that the trial judge did not consider other evidence of the complainant because:

1. the entirety of the interview was available to the trial judge;

2. the evidence itself made clear the complainant was asserting the respondent requested she delete “everything”; and

3. the trial judge was aware of evidence of extensive electronic communications.

62. As to the CDPP’s submission that the trial judge erred in rejecting the material as irrelevant, the respondent said that this submission misapprehended the basis upon which the evidence was excluded, which was pursuant to s 137.

Consideration of ground 2

63. The only real issue in this case is whether during five telephone conversations between the respondent and the complainant, the respondent said things that were sexualised and inappropriate.

64. The only direct evidence of the indecent content of those calls is the evidence of the complainant. There is, however, circumstantial evidence available from which the jury could infer that the allegedly sexualised and inappropriate things were said by the respondent. One issue relevant to circumstantial proof of the Crown case is the extent to which the respondent caused the telephone calls to take place in private and in circumstances where the respondent could not be overheard by others. The fact that the respondent was seeking to keep his numerous electronic communications with the 15-year-old complainant a secret from others is a piece of circumstantial evidence available to the jury in considering this issue. The evidence that the complainant was told to delete all electronic messages is relevant to circumstantial proof of the Crown case.

65. If the House v The King standard of review were applicable, I would have dismissed this ground of appeal as the trial judge’s conclusion under s 137 of the Evidence Act was an available process of reasoning. I have concluded, however, in applying the Warren v Coombes or correctness standard of review, that the trial judge should not have excluded this evidence under s 137.

66. The starting point is that the evidence related to deleting all electronic messages between the respondent and the complainant. To the extent that the trial judge found that the evidence related only to one piece of evidence, I respectfully disagree. The evidence had a much broader scope.

67. The evidence, considered at its highest, had significant probative value. The evidence of the deletion of messages was relevant to a fact in issue, being whether the respondent took steps to ensure that electronic communications he had with the complainant were secret and that she did not divulge the contents of those communications to anyone. In context, telling the complainant to delete messages was highly probative of the secretive nature of the relationship with the complainant that was being cultivated by the respondent.

68. The most likely danger of unfair prejudice arising from this evidence is that the jury would reason that the deleted text messages also contained indecent content. That suggestion, however, can be met by a firm direction addressing the complainant’s evidence denying that this is the case. There is perhaps also a danger that the jury would reason that this evidence demonstrates a consciousness of guilt or a tendency. I am persuaded that any unfair prejudice to the respondent could be appropriately accommodated by directions to the jury regarding circumstantial evidence, and, if sought by the respondent, the inapplicability of tendency reasoning or reasoning as to whether the evidence demonstrates a consciousness of guilt. Each direction would obviously be tailored to fit the circumstances of the case. The danger of unfair prejudice does not outweigh the probative value of the evidence.

69. Although finely balanced, I have concluded that the absence of this evidence substantially weakens the Crown case. The respondent’s cultivation of a secret relationship with the complainant, separate from her family, would potentially be an important aspect of the jury understanding the context of the alleged offending. The ruling thus substantially weakens the Crown case.

70. I would allow ground 2.

Ground 1: the trial judge erred in failing to find the evidence of the pyjama picture text relevant as context evidence

71. The Crown sought to tender a photograph of a telephone which displayed on its screen a screenshot of a text message exchange dated 13 February 2019 (marked as “Exhibit E”) which was ruled inadmissible. ^[1]  The screenshot captured part of an exchange between the complainant and the respondent which said:

    1. The messages were sent via Facebook messenger.

“Complainant:   … lot u and Aunty Sharon mean a lot as well

Respondent:   So I cant call you on my own?

Complainant:   Yeah u can

I was just saying

Respondent:   Thats good.

Send me a pic in your pjs

Complainant:   Why

Ummm why

Respondent:   Just so I can see you before I go to bed

9:30pm

Respondent:   If I cant see you I will go to bed now”

72. The background to the ruling was that the CDPP sought to lead the evidence of the screenshot of the above messages and the complainant’s related evidence in the record of her police interview as relationship evidence. The CDPP disavowed the use of the evidence as proof of a tendency to have a sexual interest in the complainant. It was submitted, however, that the evidence showed the “inappropriate nature of the relationship”:

“this evidence is demonstrative of the fact it’s moved from a familial relationship, from an ordinary [redacted] relationship to something else, to something of a sexual nature”.

73. The respondent before the trial judge submitted that the evidence tended to reveal a sexual interest and was thus tendency evidence. The respondent submitted that the evidence was not context evidence as there is already evidence giving context to the charges and the evidence invites the jury to engage in tendency-type reasoning.

The trial judge’s ruling

74. The trial judge’s reasoning for not allowing the evidence about the pyjama picture text was as follows:

1. the CDPP did not rely on the screenshot as context evidence, nor tendency evidence, but as evidence to show the sexual nature of the relationship between the complainant and the respondent;

2. the respondent opposed the tender of the evidence on the basis that it was tendency evidence, in that it was proof of a sexual interest;

3. Special Bulletin 30 from the Judicial Commission of New South Wales, dealing with relationship evidence in sexual assault cases, identifies three types of relationship evidence:

1. context evidence, which is evidence that may make the complainant’s evidence more understandable by placing it in context;

2. circumstantial evidence of a relevant fact, for example, of an accused’s state of mind at a particular time; and

3. circumstantial evidence of tendency, which would be tendency evidence;

4. as to the first category, the CDPP before the trial judge disavowed use of the evidence as context evidence;

5. as to the second category, his Honour concluded that the evidence was tendered to help establish a relationship of a sexual nature between the respondent and the complainant;

6. as to the third category, the CDPP said that the evidence would show the escalating character of the relationship between the respondent and the complainant going from avuncular to sexual;

7. the time frame for the events was within six days, so it was a fairly fresh relationship which perhaps was an obstacle for context; and

8. the only identified fact in issue addressed by the evidence is the commission of the actual offences themselves, and that was not relied on. The only fact in issue the evidence would address is the ultimate fact in issue by way of tendency reasoning.

75. The trial judge held that there was no relevant basis for the evidence to be admitted.

Submissions on appeal

76. On appeal, the CDPP conducted a very different case to that conducted before the trial judge. A much more detailed submission was made to the effect that the evidence was context evidence.

77. In DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206, McClellan CJ at CL (with whom Hidden J and Fullerton J agreed) summarised the position thus:

“[28] Whatever be the position under the common law, the accepted position in New South Wales is that evidence of ‘relationship’ may be admitted unless excluded after consideration has been given to s 135 or s 137 of the Evidence Act: Qualtieri; R v AH (1997) 42 NSWLR 702; R v Fraser (NSWCCA, unreported, 10 August 1998). However, it will only be admissible if it is relevant because it may assist in the evaluation of other evidence going to a fact in issue. In particular it may provide the ‘context’ in which to understand a narrative in the sense suggested by Gleeson CJ and Heydon J in the passages above [extracted from HML v The Queen (2008) 235 CLR 334; [2008] HCA 16]. Unless the other evidence in the trial and the issues which it raises make it relevant to prove the ‘context’ in which the alleged offence or offences occurred, it will be almost inevitable that the discretion should be exercised to exclude the evidence. …”

78. The CDPP cited Norman v R [2012] NSWCCA 230 as authority for the principle that evidence of the present kind may be admissible. There Macfarlan JA (with whom Price J and McCallum J agreed) said:

“[24]   As pointed out in Roach v R [2011] HCA 12; 242 CLR 610, evidence which incidentally shows propensity but which is otherwise relevant will not be excluded provided that the jury is properly warned against its use as propensity evidence (see also BBH v R [2012] HCA 9; 86 ALJR 357 at [146] - [149]).

[25]   A basis upon which relationship evidence may otherwise be relevant is that it assists in the evaluation of other evidence such as that of a complainant, as it did in Roach v R which concerned charges of non-sexual domestic violence:

‘ ... Here the complainant gave direct evidence both of the alleged offence and of the “relationship” evidence. The latter evidence, which included evidence of other assaults, was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant's conduct on the day of the offence would not appear “out of the blue” to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury’ (at [42], citation omitted).

[26]   In other words, relationship evidence may be admitted on the basis that, without it, the jury would be faced with a seemingly inexplicable or fanciful isolated incident. To enable complainants to give their account of events comprehensively, they must be permitted to place the incidents of which they complain in a meaningful context.”

79. His Honour then said:

“[29]   On a number of occasions this Court has however emphasised that it is necessary to consider carefully the basis upon which ‘relationship’ evidence is relevant in a particular case (see Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 at [112]; DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [28] - [30] and RG vR [2010] NSWCCA 173 at [36] - [37]). In RG, for example, the basis of relevance was described as follows:

‘The evidence of which complaint is now made, if believed, established a pattern of behaviour in which the complainant was relatively unsurprised by the conduct the subject of the charge, and made no response, nor any subsequent report. In that respect, it explains her behaviour, which may otherwise have appeared surprising and therefore implausible to the jury’ (at [38]).”

80. The Court, however, held that mere relationship evidence is insufficient:

“[33]   The Crown also submitted that the evidence was relevant to demonstrate ‘the nature of the relationship’ (Crown's Written Submissions [17]) but, consistently with the approach taken by this Court in Qualtieri and DJV, it is insufficient to rely solely upon such a proposition. Evidence ‘is not relevant merely because it discloses aspects of the relationship between an accused and a complainant. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context’: DJV per McClellan CJ at CL at [29]. Particularly because of its potentially prejudicial character, the precise basis upon which the evidence is relevant must be closely analysed. …”

81. The fact that context evidence is capable of being tendency evidence is not, in itself, fatal to its admissibility as context evidence. The CDPP cited CA v R [2017] NSWCCA 324 for this proposition where N Adams J (with whom Beazley ACJ and Walton J agreed) said:

“[82]   ‘Tendency evidence’ is defined in the Dictionary to the Evidence Act as meaning ‘evidence of a kind referred to in section 97 (1) that a party seeks to have adduced for the purpose referred to in that subsection’ [emphasis added]. That is, it is defined by the purpose for which it is tendered: L'Estrange v R [2011] NSWCCA 89 at [59]. The Crown did not seek to have the evidence adduced for a tendency purpose, thus the fact that it was capable of constituting both tendency evidence and context evidence does not mean that it was wrongly admitted.

[83]   There will no doubt be many cases in which the Crown relies upon similar incidents, which are not included in the indictment, as context evidence when the same evidence is also capable of being relevant as tendency evidence. It is for that reason that this Court has held that, in such cases, the trial judge is required to give a direction that the evidence cannot be relied upon in that way, as the trial judge did in this case (see [80] in Qualtieriv R extracted above at [68]).”

82. The CDPP submitted that the trial judge erroneously proceeded on the basis that the CDPP was not relying on the evidence as context evidence. The CDPP stated that the evidence of the screenshot of the pyjama picture text and the related evidence was not being led as tendency evidence but as relationship evidence establishing the “inappropriate nature of the relationship and that the respondent has a sexual interest in the complainant”.

83. The CDPP submitted that the pyjama picture text marked the commencement of the period starting in January when the respondent’s messages started to make the complainant feel uncomfortable. By not admitting the evidence of the pyjama picture text and the evidence that the respondent either deleted or asked the complainant to delete their messages, the evidence of the “covert relationship” has been removed from the trial. There is no other evidence of this context of the relationship.

84. Finally, the CDPP submitted that the trial judge erred when he found there had not been any identified fact in issue to which the pyjama picture text goes other than the commission of the actual offences themselves. The CDPP contended that the evidence was relevant to establishing that there had been a movement from a familial relationship “to an inappropriate relationship moving towards being of a sexual nature”.

85. The respondent submitted that it was far from clear that the Crown was seeking to articulate a basis for admission of the evidence as context evidence. In any event, neither in this Court nor below has the CDPP identified any relevant issues that the evidence of context would address. The respondent submitted that the trial judge did not err as asserted, and in the alternative that the CDPP did not advance a relevant basis for the admission of context evidence and as such any error is immaterial.

86. The respondent further submitted that although CA v R is authority for the proposition that context evidence may be admitted otherwise than to explain a lack of complaint, this does not alter the position in the authorities that there must be some relevant issue to which the evidence goes. As N Adams J observed in CA v R:

“[75]   The trial judge’s reasons disclose that his Honour clearly had regard to the steps identified by this Court in Qualtieri v R.His Honour first identified the evidence. He then explained how it was relevant; namely, to provide a link between the two tranches of alleged offences. He noted that the lookout incident occurred mid-way between the two periods of time. His Honour observed that, if the evidence were not before the jury, they would have been left with an unrealistic or misleading picture as to the two series of apparently unconnected events. …”

Consideration of ground 1

87. Before the trial judge, the CDPP case about the admissibility of this document was not clear. The trial judge, correctly, apprehended the CDPP submissions made to him this way; “there has not been any identified fact in issue to which this goes …”. One thing which is clear is that the CDPP sought below to introduce the message requesting a photo as evidence of a sexual interest, which is another way of expressing what was once referred to as evidence of a guilty passion, or tendency evidence.

88. The case made by the CDPP in this Court is quite different. On the most limited way the CDPP put the admissibility of the evidence it was context evidence, in the same way that the evidence about a direction to delete electronic messages was context evidence, being tendered to establishing the covert nature of the relationship.

89. The only basis upon which the trial judge rejected this evidence was relevance. The question of relevance is to be judged by the Warren v Coombes or correctness standard, there being only one legally correct answer. Whilst I understand why the trial judge rejected the relevance of this evidence given the confusing way in which the relevance of the evidence was put to him, I think that in the limited way the CDPP described the evidence in this Court it is relevant. That is, it is relevant to establish the covert or secret nature of the relationship.

90. The additional way in which the CDPP sought to support the tender of the evidence which was its primary position before the trial judge (and repeated at least in the alternative in this Court) was, however, impermissible. The problem for the CDPP in relying on the evidence as showing “an inappropriate sexual interest in the complainant” or the “commencement” of that “inappropriate sexual interest” is that this is not relationship evidence of the kind described in the cases relied upon by the CDPP. As the Court explained in Norman v R, evidence is not relevant merely because it discloses aspects of the relationship between an accused and a complainant. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context. If the issue is framed as “an inappropriate sexual interest in the complainant”, that is a tendency basis and not relationship evidence as explained in the cases cited.

91. I can appreciate a submission that the evidence was admissible as evidencing “an inappropriate sexual interest in the complainant” or the “commencement” of that “inappropriate sexual interest” as evidence of what was once described as guilty passion. To be admissible on this basis, however, it needed to be tendered as tendency evidence. The CDPP does not seek to lead the evidence as tendency evidence. The importance of this point is made clear by the decision of McClellan CJ at CL in DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206 where his Honour said (Hidden J and Fullerton J agreeing):

“[39]   The evidence of the appellant viewing the complainant in the shower could never have been described as ‘relationship’ or ‘context’ evidence. This was effectively conceded by the Crown at the original voir dire hearing. It was evidence which would previously have been described as ‘evidence of a guilty passion.’ It was undoubtedly tendency evidence. Because there was no issue which justified the admission of the evidence as relationship evidence and it was not proffered as tendency evidence it should have been rejected.”

92. Just as the evidence of viewing the complainant in the shower could not properly be described as relationship evidence in DJV v R, here the request for a photograph of the complainant in her pyjamas could not properly be described as relationship evidence.

93. Whist this conclusion is not fatal to the admissibility of the evidence (as it is relevant in the way I have described at [89] and by reference to ground 2), it means that the principal way the CDPP sought to address the jurisdictional question on ground 1 must be rejected. That is, the submission that the Crown case is “substantially weakened” by the rejection of this evidence cannot be tested through the prism of that evidence being available to prove “inappropriate sexual interest in the complainant” or the “commencement” of that “inappropriate sexual interest”. The basis upon which the CDPP sought to meet the jurisdictional threshold was this impermissible purpose. As to whether the ruling eliminates or substantially weakens the prosecution’s case, the CDPP submitted that the ruling has eliminated from the prosecution’s case evidence as to when the relationship changed from being a familial one to an “inappropriate” one and that there is no other evidence of this.

94. I have concluded that the rejected evidence is relevant only on the limited basis I have described, that is, to establish the covert nature of the relationship. Understood in that way, the rejection of this evidence does not substantially weaken the Crown case. There is a good deal of evidence, including the evidence which will now be admissible (the subject of grounds 2 and 3), which goes to that question. Care must be taken to apply the statutory phrase in its relevant context. The evidence may likely have had sufficient cogency or force if successfully tendered as tendency evidence. As I have said, however, the CDPP expressly disavowed that basis of admissibility.

95. Given the very limited way in which the evidence was ultimately shown to be relevant, I have concluded that the jurisdictional precondition in s 5F(3A) of the Criminal Appeal Act has not been overcome in relation to this evidence.

96. I would reject ground 1.

Conclusion and proposed orders

97. For the foregoing reasons I propose the following orders:

1. Appeal allowed in part;

2. Set aside the decision of the trial judge made on 2 June 2021 (R v Passmore [2021] NSWDC 231) that evidence of the relevant parts of a six-page suicide note written by Mr Passmore on 17 February 2019 (marked as “Exhibit F”) together with related questioning of Mr Passmore in a record of interview dated 21 February 2019 (marked as “Exhibit G”) be excluded;

3. Set aside the ruling of the trial judge made on 1 June 2021 that evidence from the transcript of the complainant’s police interview on 19 February 2019 that Mr Passmore told her to delete messages (being the answer to Q130 up to and including the answer to Q133) be excluded;

4. Appeal otherwise dismissed;

5. Remit the matter to the trial judge.

98. PRICE J: I have had the considerable advantage of reading in draft the judgment of Payne JA. I am grateful for his Honour’s consideration of the standard of review to be applied and I agree with his Honour’s conclusion. I also agree with his Honour that Grounds 2 and 3 should be upheld. However, I regret that I am unable to agree that the rejection of the evidence of the screenshot does not substantially weaken the Crown case and Ground 1 should not be upheld.

99. There was much discussion in submissions before the trial judge and in this Court as to whether the evidence of the screenshot of the pyjama picture text was being led as relationship (more particularly, context) evidence or tendency evidence. In my view, the attempt to finely categorise or label this evidence obscures the principal question of relevance. As Menzies J observed in Wilson v The Queen at 344: ^[2]

“It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence – which rests fundamentally upon the requirement of relevancy, ie having a bearing upon the matter in issue – to a set of artificial rules remote from reality and unsupported by reason.”

2. (1970) 123 CLR 334; [1970] HCA 17.

100. I agree with Payne JA that the evidence is relevant to establish the covert or secret nature of the relationship. However, the relevance of the evidence, in my respectful opinion, is not confined to this issue. It would be open to the jury to find from answers in the complainant’s police interview that the pyjama picture text occurred in January 2019 prior to the first charge, which is alleged to have occurred on about 7 February 2019.

101. The evidence, if accepted, is capable of showing the commencement of the period starting in January 2019 when the respondent’s messages began to make the complainant uncomfortable.

102. The evidence is fundamental to the jury’s understanding of the relationship between a 15 year old girl and a 66 year old man. The change in that relationship between the complainant and her [redacted] is pertinent to the issues which a jury would have to decide.

103. The probative value of the evidence taken at its highest is significant. The exclusion of that evidence would substantially weaken the Crown case.

104. In my opinion, Ground 1 should be upheld. I agree with the orders proposed by Wright J.

105. WRIGHT J: I have had the advantage of reading in draft the judgments of Payne JA and Price J.

106. I agree with Payne JA’s conclusion concerning the relevant nature of appellate review. In a case such as the present, the duty of this court is to decide the issue – the facts as well as the law – for itself but in so doing it must recognize the advantages enjoyed by the judge who heard the matter at first instance, as explained in Warren v Coombes (1979) 142 CLR 531 at 552; [1979] HCA 9.

107. As to the second and third grounds of appeal, I also agree with Payne JA that the appeal should be upheld on these two grounds for the reasons his Honour has given.

108. In relation to the screen shot of the messages sent by Facebook messenger marked Exhibit E, which has been referred to as the “pyjama picture text” and which was the subject of appeal ground 1, I have, with some hesitation, come to a different conclusion from Payne JA. In this regard, I agree with Price J and the reasons his Honour has given. In addition, I make the comments which follow, without repeating the relevant background and circumstances as set out in Payne JA’s judgment and referred to in Price J’s judgment.

100. The basis on which the Crown sought to tender the pyjama picture text was not identified with particular clarity before the trial judge, although it was clear that it was not tendered as tendency evidence. Initially, it was submitted that this evidence was “relationship evidence”. ^[3]   When the trial judge enquired how this was different from “context” evidence, the Crown responded:

“We are more focused here on the evidence of what we say is evidence of a sexual interest, and it’s different reasoning that could potentially be applied by the jury as opposed to context”. ^[4]

3. Tcpt, 31 May 2021, p 16(44). The label “HIS HONOUR” appears to be an error, given the content and surrounding labels.

4. Tcpt, 31 May 2021, p 22(7-9).

110. After some discussion of the timing of the screen shot and other matters, the Crown then submitted, in response to the trial judge’s comments concerning principles relating to relationship evidence:

“Yes. In some respects, it does also provide context, though, in terms of her allegations that she’s making.” ^[5]

5. Tcpt, 31 May 2021, p 24(26-27).

111. Later in the submissions, the following exchange occurred:

“HIS HONOUR: Is another way of putting it to say that the jury should be made aware that at the same time he’s transmitting indecent material, he’s also asking for photographs of this girl in her pyjamas at nighttime, and having a conversation of the type seen in the messages, which gives you some context in which he would have making these sorts of statements?

[CROWN]: Yes, that’s right. It also does that as well, Your Honour.

HIS HONOUR: Thank you.

[CROWN]: There is some overlap between the two.” ^[6]

6. Tcpt, 31 May 2021, p 25(20-30).

112. Finally, in submissions in reply, the Crown said:

“[CROWN]: Just in relation to the points being made that there’s already evidence there as to the context, but in my submission, this evidence is demonstrative of the fact it’s moved from a familial relationship, from an ordinary [redacted] relationship to something else, to something of a sexual nature …

So ultimately, it’s not correct to say that this doesn’t alter in some way the context of their relationship because it very much does and without this it [the conduct the subject of the charges] does appear out of the blue because we are still there and moving rapidly from an [redacted] relationship to these comments over the phone. …” ^[7]

7. Tcpt, 31 May 2021, p 30(14-28).

113. In light of these submissions, it appears that the pyjama picture text message was tendered, at least in part, on the basis that it was evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding, namely whether the telephone conversations the subject of the charges actually occurred. The evidence of the pyjama text message was said to have this potential effect because it could assist to establish that the alleged conversations did not “appear out the blue”. In other words, without that evidence, the jury could have reasoned that the conversations which were the subject of the charges were less likely to have occurred because there was no suggestion of any previous inappropriate communication between the complainant and the respondent.

114. Thus, the pyjama picture text was in effect said to be relevant to the ultimate facts in issue. By these submissions, the relevance of the pyjama picture text was not limited to establishing a sexual relationship between the complainant and the respondent or to establishing the covert nature of the relationship.

115. Having regard to the parties’ submissions before the trial judge and in this Court and the fact that it would have been open to the jury to find that the pyjama text picture was sent in January 2019 prior to the telephone conversations the subject of the charges, in my view, the pyjama picture text was relevant on a basis similar to that outlined by Macfarlan JA in Norman v R [2012] NSWCCA 230 at [26], namely that, without it, the jury would be faced with seemingly inexplicable, or at least seemingly unlikely, telephone conversations of a sexual nature. In addition, I agree with Payne JA that this evidence was relevant to establishing the covert or secret nature of the relationship, when viewed in the context of the other evidence concerning deletion of messages.

116. Furthermore, this evidence should not be excluded under s 137 of the Evidence Act 1995 (NSW). The evidence, considered at its highest, had significant probative value being relevant to the ultimate facts in issue as explained above and in relation to the secretive nature of the relationship. The most likely danger of unfair prejudice arising from this evidence is that the jury would engage in tendency reasoning. That should be addressed by an appropriate direction that the evidence cannot be used to reason in that way. If such a direction is given, the danger of unfair prejudice would not outweigh the probative value of the pyjama picture text evidence.

117. When the relevance of the pyjama picture text is understood in the manner which has been outlined above, it appears to me that the Crown case would be substantially weakened by the rejection of this evidence. Accordingly, the jurisdictional precondition in s 5F(3A) of the Criminal Appeal Act 1912 (NSW) is satisfied.

118. I also agree with the comments of Price J to the effect that concentration upon characterisation of evidence by reference to whether it is “relationship” evidence or “context” evidence, especially as those characterisations have no statutory basis, may be unhelpful and deflect attention, where applicable, from the statutory questions of relevance within s 55 of the Evidence Act, the requirements in respect of tendency evidence in s 97 and the exclusion of prejudicial evidence under s 137.

119. In the circumstances, ground 1 should also be upheld.

120. Accordingly, I propose that the orders of the Court should be:

1. Appeal allowed;

2. Set aside the decision of the trial judge made on 2 June 2021 (R v Passmore [2021] NSWDC 231) that evidence of the relevant parts of a six-page suicide note written by Mr Passmore on 17 February 2019 (marked as “Exhibit F”) together with related questioning of Mr Passmore in a record of interview dated 21 February 2019 (marked as “Exhibit G”) be excluded;

3. Set aside the ruling of the trial judge made on 1 June 2021 that evidence from the transcript of the complainant’s police interview on 19 February 2019 that Mr Passmore told her to delete messages (being the answer to Q130 up to and including the answer to Q133) be excluded;

4. Set aside the ruling of the trial judge made on 31 May 2021 that the evidence of the photograph of a telephone depicting a screen shot of a message sent by Mr Passmore to the complainant’s phone concerning a picture of the complainant in pyjamas (marked as “Exhibit E”) be excluded;

5. Remit the matter to the trial judge.

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Endnotes

Amendments

27 February 2023 - Paragraphs [8], [72], [102] and [112] - redactions made.

Decision last updated: 27 February 2023