R v Toohey (No 1)

[2017] NSWSC 846

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Toohey (No 1) [2017] NSWSC 846
Hearing dates:	21 June 2017
Date of orders:	21 June 2017
Decision date:	21 June 2017
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	Refuse application by the Crown to adduce tendency evidence. Grant application by the accused to sever the indictment.
Catchwords:	CRIMINAL LAW – evidence – admissibility of tendency evidence – accused indicted on charges of murder and sexual intercourse with a child under 10 – alleged tendency of accused to be aggressive towards and to assault children – whether tendency evidence of significant probative value for either charge – where tendency expressed and provable only at a high level of generality – consideration of R v Hughes [2017] HCA 20 CRIMINAL LAW – severance of counts on indictment – whether counts should be tried separately pursuant to Criminal Procedure Act 1986 (NSW), ss 21(2), 29(3) – whether evidence cross-admissible
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Billings v R [2012] NSWCCA 33 De Jesus v The Queen [1996] HCA 65 DSJ v R; NS v R (2012) 84 NSWLR 758; [2012] NSWCCA 9 Hughes v The Queen [2017] HCA 20 KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 R v El-Hayek [2004] NSWCCA 25 R v Lockyer (1996) 89 A Crim R 457 R v Verma (1987) 50 A Crim R 441 Sokolowskyj v Regina [2014] NSWCCA 55; 239 A Crim R 55 Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5 Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121
Category:	Procedural and other rulings
Parties:	Regina (Crown) Brendon Toohey (accused)
Representation:	Counsel: Mr Trevor Bailey (Crown) Mr James Trevallion (accused)   Solicitors: Mr Ciro Triscari, Office of the Director of Public Prosecutions (Crown) Ms Ngaire Ralph, Archbold Legal (accused)
File Number(s):	2014/108477
Publication restriction:	This judgment is affected by s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) pursuant to which the disclosure of any information which tends to identify in connection with these proceedings any person who was a child at the time alleged offences were committed is prohibited, including persons who may now be deceased. This applies to the name of the deceased. Judgment to be published using pseudonyms and publication restricted pending verdicts on both charges laid against the accused.

Judgment

1. Brendon Toohey was arraigned before the criminal list judge on 4 November 2016 on two counts as follows:

1.   That on or about 1 April 2014 at Mandurama in the State of New South Wales he did murder [IS].

2.   That on or about 1 April 2014 at Mandurama he had sexual intercourse with [IS], a child then under 10 years, namely 11 months.

2. The trial of the accused on these charges is listed to commence before myself and a jury on 22 June 2012. The accused will be re-arraigned in the presence of the jury panel. As the changes concern a very young child who is alleged to be the victim her name must be anonymised and the names of other children and persons will be similarly anonymised to avoid indirect identifications.

3. On 20 April 2017 the Crown served on the accused notice under s 97 of the Evidence Act 1995 (NSW) that it intends to adduce evidence which it asserts is capable of proving that the accused had, at the time of the crimes alleged in the indictment, a tendency “to exhibit aggression towards and to assault children”. The accused objects to the tendency evidence and argument has been heard, on 21 June 2017, on admissibility. Pursuant to s 130 of the Criminal Procedure Act 1986 (NSW) the Crown seeks a ruling upon this question before the jury is empanelled.

4. On 7 June 2017 the accused gave notice of an application that the indictment be severed so that the trial would proceed only on the murder count, leaving the charge of child sexual intercourse under s 66A(1) of the Crimes Act 1900 (NSW) to be prosecuted on a separate indictment at a later date. This application must be determined before the accused can be re-arraigned at the commencement of his trial. This application was also argued on 21 June 2017.

The occasion of fatal injury and the accused’s explanation

5. From the Crown’s statement of its case dated 2 November 2016 and from the statements and reports of witnesses whom it intends to call, it appears the Crown will be able to prove the following facts. From about October 2013 the accused was in an intimate relationship with AB, the mother of the deceased child. For about 4 months up to the beginning of April 2014 they lived together in a single story detached dwelling at Mandurama, 65 km southwest of Bathurst. AB had three children from two previous relationships: two older daughters aged 8 years and 10 years and the deceased aged 11 months at the beginning of April 2014. The three children were all living with the accused and AB in the first months of 2014. The accused was then aged 35 years and AB was 30 years old.

6. AB was scheduled to undergo surgery at Bathurst Hospital on Tuesday 1 April 2014. The couple arranged for AB’s father to collect the two older girls from school on the afternoon of Monday, 31 March 2014. On the morning of 1 April 2014 the accused and AB drove to Bathurst with the infant IS. AB was admitted to the hospital and the surgery was carried out. The accused remained with IS in Bathurst for the day. They departed Bathurst at about 7:00 pm for Mandurama, where they arrived at about 9:30 pm.

7. At 11:03 am the next morning, Wednesday 2 April 2014, the accused drove to the front of the Emergency Department of Blayney Hospital with IS in the back seat of his motor vehicle. He requested medical assistance for the child, who was unconscious. Resuscitation and other procedures were carried out by medical staff of the hospital but the child could not be revived. Life was declared extinct at about 12:40 pm.

8. The Crown will tender a recording and a transcript of a police interview with the accused which commenced at 2:55 pm on 2 April 2014 at Blayney Hospital. At that stage he was being treated as a witness rather than as a suspect. He told police the deceased had fallen off a trampoline in the backyard of the home which he occupied with AB and her children at Mandurama. He said the trampoline was positioned adjacent to and partly over the concrete top of an in-ground septic tank. He had placed the deceased on the trampoline whilst he retrieved washing from a clothesline nearby. The child had crawled to the edge of the trampoline and “slipped off the edge and she went straight down, headfirst over onto the concrete edge” of the septic tank, below.

9. The accused said he saw the infant at the edge of the trampoline, “she went to put her hands up, and she was kneeling up on the mat”. He had tried to catch her as she fell and he thought he “pushed her away from the concrete a bit”. According to the accused in this interview the top of the deceased’s head hit the tank and she “sort of tumbled over the side of it”. She rolled over onto her bottom. She started to scream, the accused picked her up and held her, patting her on the bottom and she stopped crying after five minutes. He then looked at her more closely and saw she had a graze on the side of her head and black discolouration began to appear under her left eye.

10. In some of his answers to police the accused said that soon after IS’s fall she seemed to be having trouble breathing, her lips started to take on a blue colour, her eyes were rolling back and she had blood near her mouth. Within about 8 or 9 minutes after she fell off the trampoline he commenced to drive, with the child in the back seat, to Blayney Hospital. In other answers the accused said he was originally driving to Bathurst to pick up AB but that on the way he thought the child “wasn’t breathing properly” and decided to take her to Blayney Hospital (which is only 28 km along the route to Bathurst).

11. Asked whether the deceased had suffered any other injuries in recent times, the accused said she had bumped her head two to three weeks earlier when she was strapped into a baby seat in the back of a panel van he was driving and the vehicle hit a kangaroo on the road from Cowra to Mandurama. He also said she had developed sufficiently to be able to stand and to move around a coffee table, holding onto it, and “she bumps her head nearly every day on the coffee table”. He said, “She plays out in my shed and she bumps herself around little bit with screwdrivers and stuff, but … nothing like that should hurt her”.

12. The child had been taken to a doctor at Carcoar, a township some 14 km from Mandurama, on 13 March 2014 with symptoms of viral gastroenteritis. AB and the accused had attended with her. The Crown will lead evidence from the general practitioner at Carcoar to the effect that she was not told of the child having suffered a head impact in a vehicle collision with a kangaroo. Nor did the doctor observe the child to have head or facial injuries or bruising which could have been so caused.

The Crown’s forensic medical evidence

13. The Crown will lead evidence from Dr Lyons regarding his post-mortem examination. He found these head injuries:

1. On the right side of the forehead, two areas of external abrasion associated with three small areas of haemorrhage just below the scalp. All of these injuries “could have been caused by more than one application of blunt force”.

2. On the back of the head, an area of bruising exhibiting a pattern, such as that of a woven carpet.

3. On the back of the head, in the left temporofrontal region and in the right parietal region: areas of haemorrhage.

4. Significant brain swelling.

5. Fresh subarachnoid haemorrhage over the superior surface of the cerebral hemispheres.

6. A small amount of fresh subdural haemorrhage inferior to the pons (under the cerebral hemispheres, towards the brainstem) and medulla.

7. A small amount of fresh haemorrhage around the cribriform plate (at the front of the skull, dividing the nasal cavity from the brain cavity).

8. A small amount of fresh haemorrhage around both optic nerves.

14. The contents of a neuropathology report will be read to the jury, stating these results:

1. Several foci of recent (≤ 1 – 2 days) subarachnoid haemorrhage in the longitudinal fissure (between the two cerebral hemispheres).

2. A small amount of fresh subarachnoid blood “in association with the left cerebellum hemisphere”.

3. No cerebral contusions, hypoxic or ischaemic neuronal change, traumatic axonal injury.

15. Significantly, there were no fractures of the skull. Dr Lyons is expected to give evidence that these injuries suggest several separate applications of blunt force trauma to the head, not consistent with a simple fall from a trampoline to a concrete surface. The blunt force trauma which caused the above injuries caused death.

16. Dr Lyons will give evidence of other recent, relatively less serious blunt force injuries sustained by the deceased:

1. A bruise to the right eyelid.

2. A number of small bruises to the torso and arms.

3. A bruise to the left flank with fine scratches, consistent with contact of a rough surface.

17. Dr Lyons found other bruises, abrasions and sundry injuries which in his opinion were not serious and either did not occur recently before death or may have resulted from attempts to resuscitate the child. These were a small abrasion under the chin, bruising to both shoulders, two abrasions near the left forearm and haemorrhage into the muscles of the left third lateral intercostal space (between two ribs). Lastly, Dr Lyons found fresh mucosal and submucosa haemorrhage to the rectum, suggesting recent trauma due to introduction of a foreign object through the child’s anus.

18. The Crown will also call Dr Susan Marks, a paediatrician with expertise in forensic paediatrics. Her opinion is that the external head injuries, the consequent subarachnoid, subdural and other haemorrhaging in the deceased’s brain cavity and also the brain swelling are not explicable on the basis of a short fall from the trampoline onto the concrete surface below. The height of the edge of the trampoline above the concrete top of the septic tank has been measured by crime scene investigators at 70 cm.

Crown biomechanical and crime scene evidence

19. The Crown will call an engineer to describe biomechanical tests carried out with a lifelike dummy dropped onto concrete from a height equivalent to that of the trampoline above the septic tank, making allowance for whether the infant was, variously, lying, crawling or kneeling. The Crown will contend that the test results show it is possible that deceleration on impact as a result of a fall from this height could cause brain injury such as occurred, but with a high likelihood of accompanying fracture. No mechanism can be suggested by the engineer by which the multiple recent external head injuries could have been caused in a fall from the trampoline.

20. Embedded in the concrete top of the septic tank were three inverted U-shaped pieces of reinforcing steel, protruding above the surface of the concrete as if to serve as lifting handles. These were bent over 90 degrees so that they formed a loop lying parallel to the concrete surface, with about 2 to 7.4 centimetres clearance. One such piece of steel was directly under the edge of the trampoline. The Crown’s engineering expert witness has expressed the opinion that two of the child’s external abrasions, in the right frontal region, could have been caused by impact with this piece of steel.

21. There will also be evidence that leaf litter on the trampoline appeared undisturbed (suggesting that the deceased had not been placed upon it and had not crawled on it) and that bloodstains from a pillowcase and from a towel located inside the house have been DNA matched to the deceased.

The circumstantial nature of the Crown case

22. In short, the Crown case on the murder charge is entirely circumstantial. It depends upon an inference being drawn from the forensic medical evidence (that the fatal head injuries were recent) and from the admissions of the accused and evidence of the deceased’s mother (that the accused was the only person with the child during the period in which the injuries must have been sustained). The inference contended for is that the blunt force trauma which caused the injuries must have been inflicted by the accused and the blows by which this was done must have been (a) accompanied by intent to cause at least grievous bodily harm or (b) inflicted with reckless indifference to human life.

23. With respect to the charge of sexual intercourse the Crown case will be founded upon the forensic pathology evidence that the haemorrhage of the internal wall of the infant’s rectum resulted from injury, caused by the insertion of a foreign object through the anus. It is alleged this occurred recently before the examination. The Crown will also rely upon evidence of the deceased’s mother that the infant was with her at all recent times except when in the sole care of the accused whilst the mother was in Bathurst Hospital from the morning of Tuesday, 1 April 2014. The mother did not insert any foreign object in the child’s anus nor witness any other person do this. The jury will be invited to infer that the insertion must have been done by the accused.

The disputed tendency evidence

24. The evidence which the Crown wishes to call in reliance upon s 97 of the Evidence Act concerns his behaviour towards children of three women with whom he has had intimate relationships, prior to his relationship with AB. The disputed evidence is said to be capable of satisfying the jury that the accused had a tendency “to exhibit aggression towards and to assault children”. It is material to record the chronology of the accused’s relationships with these other women.

25. From about 1996 the accused was in a relationship with FP. She had two children by him, a son born in mid 2000 and a daughter born in early 2005. At about the beginning of 2007 the accused commenced an affair with TW2. FP learned of this and in early 2008 she left him, with their two children. The accused continued in his relationship with TW2. TW2 already had two children from an earlier relationship, a son born in 2002 and a daughter born in 2004. TW2 had a son by the accused, born in late 2008.

26. From about early 2009 the accused was living in Cowra with TW2, her two children from her earlier relationship and her baby to the accused. In about mid-2010 this relationship ended and the accused left the home.

27. He commenced a relationship with TW3 in early 2012. She already had six children from earlier relationships. She gave birth to a daughter by the accused in late 2013. TW3 had been hospitalised for the latter months of this pregnancy due to a complication. During that time the accused commenced his relationship with AB, who was a neighbour and friend of TW3. After TW3 gave birth he remained with AB.

28. The proposed tendency evidence would be to the following effect:

1. TW1, stepmother of FP: When FP’s first child to the accused was a “very young baby” (which must have been in about late 2000), TW1 witnessed the accused become “really agitated and frustrated” with the baby when he refused to take his bottle. The accused took the baby from a chair in the lounge room “by forcefully grabbing or snatching him up and shook him only briefly while holding [the baby] by the ribs with both hands”. The accused walked into an adjoining bedroom and “shoved [the baby] into the cot”. He did not throw the baby into the cot “but forcibly shoved him into [it] while holding him with both hands”.

2. TW2, the accused’s second partner:

1. In about the first half of 2009 while she and the accused were living together at Cowra, “a couple of times” she saw him standing over the cot in which their daughter (then a baby of six months or less) lay crying, “yelling” at her, “Shut up. Stop crying. Why won’t you stop crying, just shut up”.

2. In the same period the accused went into the baby’s bedroom and yelled, “Why are you crying, just shut up. Why won’t you sleep.” He picked the baby up, holding her under the armpits with her face level with his own and his arms bent at the elbow and tense. When TW2 entered the bedroom he placed the baby back in her cot.

3. In about mid-2009 during an argument between the accused and TW2 whilst she was holding the baby (then aged about 6 months) he snatched the baby from her and threw her onto the middle of a king-size bed beside which the two were standing. The baby landed on her back. The accused then punched TW2 on the nose twice, hard enough to cause her nose to bleed (I have assumed the Crown would not press this as tendency evidence).

4. In early 2010 the accused “started smacking” TW2’s two older children, then aged 8 years and 6 years, by way of discipline. “He never smacked [their own daughter, then aged about 12 months]”. “He would hit their bottoms and at times a little higher, kind of the kidney area”. On a few occasions the blows were hard enough to cause “a welt or finger bruises”.

3. TW3, the accused’s third partner: At Christmas time 2012 the accused picked up TW3’s four-year-old daughter and carried her into her bedroom after she had refused repeated instructions to go to bed. The child became upset and kicked out at the accused, striking him between the legs. He doubled over in pain but “almost straightaway stood back up and hit [the child] hard on the left side of her face in a slap … [and] shouted, ‘Go to bed!’” The blow resulted in a large welt and bruise on her face, which were apparent the next morning.

4. The Crown wishes to rely upon the evidence of the second count as evidence of the tendency, formulated in the terms set out at [2], in its case on the murder count.

Application of s 97

29. The threshold test of admissibility in s 97(1)(b) is not satisfied for any of this evidence. That is, “the court [does not think] that the evidence will … have significant probative value”. The fact in issue, to which the evidence would be directed, is whether the accused inflicted, by willed acts, the blows which caused the numerous head injuries (count 1) and the insertion of the foreign object which caused the rectal injury (count 2).

29. Probative value is defined in the dictionary to the Evidence Act in the following terms:

“probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

31. In R v Lockyer (1996) 89 A Crim R 457 at 459 Hunt CJ at CL said, with reference to the expression “significant probative value” where it appears in s 97(2):

“… the probative value of evidence is the degree of its relevance to the particular fact in issue. There is no definition of ‘significant’ probative value as that phrase is used in s 97. In its context as I have outlined it, however, ‘significant’ probative value must mean something more than mere relevance but something less than a ‘substantial’ degree of relevance. ...

One of the primary meanings of the adjective ‘significant’ is ‘important’, or ‘of consequence’. In my opinion, that is the sense in which it is used in s 97. To some extent, it seems to me, the significance of the probative value of the tendency evidence (whether led by the Crown or by the accused) must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact.”

32. In DSJ v R; NS v R (2012) 84 NSWLR 758; [2012] NSWCCA 9 a five member bench considered the expression “significant probative value” in the context of s 98 (the coincidence rule). Whealey J, with whom the other judges agreed, said (at [60]):

“It has long been accepted that the approach by Hunt CJ at CL in Lockyer is correct both in relation to s 97 and s 98 …”

33. More recently in Hughes v The Queen [2017] HCA 20 the four justices who delivered the majority judgment said:

[40] … The test posed by s 97(1)(b) is as stated in Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at 485 [125]: “the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged”. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.

[41] The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

34. Taking into account these expositions of the concept of “significant probative value”, I will consider first items (1) – (3) of the Crown’s putative tendency evidence, identified at [28]. The first weakness of these items lies in the generality of the tendency which they are capable of proving. Items (1), (2)(a) and (2)(b) are instances of aggression, in the sense of an angry and frustrated reaction, towards a very young baby but without any blows being struck or injuries being inflicted, let alone blows of a life-threatening nature such as blunt force impacts to the head of an 11-month-old. Item (2)(c) did not involve aggression towards a baby. It was an act of aggression and violence towards the accused’s adult partner. Removing the baby from his partner’s arms and throwing it on to a bed did not involve striking any blow to the child or causing any injury.

35. Item (2)(d) is evidence of aggression towards children of a nature entirely different from the other instances, accompanied by smacking. It could satisfy the jury that the accused administered corporal punishment which might be regarded as excessive but not irrational or unrelated to parenting. Item (3) is different again from all of the other instances, involving a blow struck in retaliation for a painful kick inflicted by a 4-year-old child who was resisting parental control.

36. The common thread through these disparate instances or, put another way, the common denominator, is a tendency in a wide variety of circumstances to exhibit anger with and aggression towards children, translating into moderate and limited striking or rough handling on some occasions. A tendency at this high level of generality is in my view not significantly probative of the accused having inflicted several blows to the head of an 11-month-old. Inflicting blunt force trauma to the head of an 11-month-old, of sufficient severity to cause injuries such as were identified on post-mortem examination, would be, self-evidently to the perpetrator, extremely damaging and potentially lethal. The disputed evidence is incapable of establishing a tendency in the accused of sufficient particularity to be capable of rationally and significantly affecting the jury’s assessment of the probability that the accused would have inflicted blunt force trauma of that order in April 2014.

37. The disputed evidence in items (1) – (3) at [28] would also be incapable of proving any tendency specific enough to influence significantly the jury’s assessment of whether the accused inserted a foreign object in the child’s anus (count 2). Necessarily, that is, an act of deliberation and involving conscious cruelty or highly deviant sexual interest or both. The contested evidence in items (1) – (3) could not prove a tendency which would rationally bear upon the likelihood of the accused committing such an act.

38. In Sokolowskyj v Regina [2014] NSWCCA 55; 239 A Crim R 55 at [40] the Chief Judge at Common Law analysed tendency evidence which had been admitted in the trial of an appellant on one count of an act of indecency on a child under 10 years. In the following passage his Honour explained why the degree of particularity of the tendency which might be proved by evidence of an accused’s acts on other occasions may be important to assessment of the probative value of that evidence:

[40] One of the difficulties for the Crown in establishing “significant probative value” was the high level of generality of the tendency relied upon. A tendency to have sexual urges was so general as to be meaningless. The additional qualification to that tendency, i.e. to have sexual urges and to act on them in public circumstances where there was a reasonable likelihood of detection, refined the concept but not greatly. Its generality was such as to attract the criticism made by Giles JA in Townsend v Townsend [2001] NSWCA 136 at [78] where his Honour said:

“78 Assuming that the evidence was tendency evidence, it was admissible unless his Honour considered that it would not have significant probative value. His Honour considered that it did have significant probative value, although with a qualification which tended to cast doubt on that status. I am inclined to the view, still assuming that it was tendency evidence, that the evidence should have been rejected as not having significant probative value. So far as appeared, the circumstances of the respondent’s conduct towards Mrs Townsend were very different from the circumstances in which the incident between the appellant and the respondent took place; certainly the evidence was of such generality that little meaningful tendency was established.”

39. The majority of the High Court in Hughes v The Queen also recognised that the degree of particularity of the putative tendency is an important factor in evaluating the probative value of the evidence which is said to prove it. At [64] their Honours said:

[64] … The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. ...

40. For the reasons given at [34] – [37] I consider that this reasoning has application to the present case. Any tendency of the accused which could be found by the jury from the prior incidents proposed to be proved by items (1) – (3) would only be at such a level of generality as to lack any significant probative value on the factual issue of whether the accused committed the acts which are the subject of these charges.

41. In oral argument the Crown endeavoured to narrow its formulation of the tendency proved by these prior incidents, expressing it as “a tendency to lose control of himself when dealing with young children”. The jury could conclude that a tendency in those terms was exhibited by items (1), (2)(a) and (2)(b). Shouting at or becoming angry with a baby for crying may be regarded as so irrational and futile that it could only follow from loss of self control. But a tendency so expressed is still not specific in any respect which would make it significantly probative of whether the accused beat the deceased about the head. These instances could not rationally support to any significant degree a jury finding that the accused had a tendency to lose control to the point of repeatedly striking a baby to the head, in a potentially lethal manner.

42. The incident described at item (2)(c) is not evidence of a loss of control arising out of caring for a child and item (2)(d) is not evidence of loss of control at all. Item (3) could support a finding of a tendency to lose control in response to the infliction of pain upon himself by a child but if a tendency in those specific terms were proved it would have no relevance to the facts in issue. The Crown is not in a position to tender evidence that the blows it alleges he inflicted on the deceased’s head were in response to the deceased having hurt him.

43. In Sokolowskyj v Regina the Chief Judge identified a further basis upon which the tendency evidence in that case could be said to lack significant probative value, as follows:

[41] Another difficulty for the Crown in establishing significant probative value for the tendency evidence was the marked dissimilarity between the conduct relied upon to establish the tendency and the offence under consideration by the jury. On the Crown case, key elements of the offence were a prepubescent victim and no public exhibition. The appellant is said to have latched the door to the change room (inferentially to achieve privacy) and then to have assaulted the complainant. The actions on which the tendency evidence was based had as their hallmark a public display with no prepubescent element in the victim. There was no active assault, rather the appellant’s actions were “passive”. Far from seeking to conceal his actions, the gist or thrill of the offences was the fact that they could be seen and were intended to be seen.

[42] In DAO v R [2011] NSWCCA 63 Simpson J (with whom Kirby and Schmidt JJ agreed) said in relation to that issue:

“180 ... Similarity or dissimilarity in the nature of the conduct alleged is relevant to the assessment of both whether the evidence has probative value, and, if so, whether it is significant. If the evidence has significant probative value (and, in a criminal case, subject to s 101) it is admissible.”

[43] I have concluded that the tendency evidence in this case did not reach the standard required for it to have “significant probative value”. There is a large qualitative distinction between on the one hand offences of exhibitionism, involving either public masturbation or exposure of one’s genitals, and on the other, engaging in non-consensual, physical contact with the genitals of an underage complainant. In relation to the actions on which the tendency evidence was based, public display was an essential ingredient and the sexual gratification or thrill was apparently achieved by such public exposure of his genitals to women. The offence under consideration was very different. The appellant is said to have taken steps to prevent discovery by latching the change room door and by warning the complainant not to tell anyone, otherwise he would take retributive action against her family.

44. The majority in Hughes v The Queen rejected as “unduly restrictive” the approach taken by the Victorian Court of Appeal in Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121. Namely, the approach whereby “significant probative value” is assessed by the criterion of degree of similarity between the “operative features” of the acts that prove the tendency and the “operative features” of the act which is in issue. Nevertheless the majority accepted that, in determining the probative value of tendency evidence, similarities between the acts that prove the tendency and the acts charged may be material:

[37] The Velkoski analysis proceeds upon the assumption that, regardless of the fact in issue, the probative value of tendency evidence lies in the degree of similarity of “operative features” of the acts that prove the tendency. It is an analysis that treats tendency evidence as if it were confined to a tendency to perform a particular act. Depending upon the issues in the trial, however, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it. Velkoski is illustrative.

…

[39] Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.

45. Upon this consideration, again, the Crown’s proposed tendency evidence in items (1) – (3) is seen not to have significant probative value. Items (1), (2)(a) and (2)(b) involved shouting at babies in frustration and handling them roughly but no hitting. Item (2)(d) concerned hitting by way of discipline, not to the head or in a brutal or dangerous manner. Item (3) concerned hitting in reaction to a painful kick by a child, with an open hand to the child’s face. These instances are so markedly different, in quality and in severity, from the alleged repeated beating of the head of the 11-month-old victim, as to be incapable of significantly affecting assessment of the probability of the acts charged. The prior instances are only capable of proving a tendency to act towards children in a manner substantially different from what is alleged in the charge of murder.

46. The same result is reached with respect to item (4) at [28]. This involves a contention that the evidence on each charge, respectively, is cross admissible. The alleged insertion of a foreign object in the child’s anus is so markedly different from the alleged beating about the head that evidence of the former could not in any significant way “rationally affect the assessment of the probability” of the latter – or vice versa. The alleged act of anal penetration of a child, if the jury should be satisfied of it beyond reasonable doubt, might support a finding that the accused had a tendency to act with calculated, deliberate, considered cruelty to a child, either for sexual gratification or not. The Crown’s case with respect to the murder is that he lost control of his temper under the stress of caring for the child alone and beat her about the head in uncontrolled frustration and anger. The tendency which I have said might be imputed if the jury should be satisfied that the accused inserted a foreign object through the child’s anus would not be probative of the accused having conducted himself towards the child in the quite different manner alleged under the murder count.

47. The same would apply so far as the Crown might seek to impute a tendency to the accused based upon the murder count, if the jury should find it proved, and rely upon that tendency in support of count 2. A tendency to beat a child violently and dangerously about the head in uncontrolled aggression, as might be found if the murder count is proved beyond reasonable doubt, would be of no probative value as to whether the accused did or did not at about the same time engage in the calculated, depraved (and possibly sexual) cruelty of penetrating the child’s anus.

48. On the view I have taken of the Crown’s proposed tendency evidence it does not become necessary to assess, pursuant to s 101(2) of the Evidence Act, whether “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”.

Severance of the counts on the indictment

49. The Crown’s case on count 2 comprises, first, evidence from the forensic pathologist describing haemorrhage in the internal wall of the deceased’s rectum, including the opinion that this was “recent” and constituted an injury rather than an autonomous consequence of death. Secondly, there is the evidence that the accused was the sole person in contact with the child for approximately 24 hours before she died, at which point this rectal injury was present. I have already concluded that the evidence of the rectal injury is not admissible, as proof of tendency, on the charge of murder in count 1. If the charges should be tried together and if the jury should find count 2 proved beyond reasonable doubt, they could not use that finding to support the murder charge.

50. Whether the charges are to be tried together is a matter for the exercise of the court’s discretion under s 21(2) of the Criminal Procedure Act:

21   Orders for amendment of indictment, separate trial and postponement of trial

...

(2)    If of the opinion:

(a)   that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or

(b)   that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,

the court may order a separate trial of any count or counts of the indictment.

51. The discretion also arises under 29(3) of the Criminal Procedure Act:

29   When more than one offence may be heard at the same time

(1)   A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:

(a)   the accused person and the prosecutor consent,

(b)   the offences arise out of the same set of circumstances,

(c)   the offences form or are part of a series of offences of the same or a similar character.

…

(3)   Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.

52. In summary, subs (1)(a) of s 29 would permit these two charges to proceed on the one indictment but subs (3) of s 29 and s 21(2) require the court to determine whether, in the interests of justice and of a fair trial, they should be tried separately.

53. In Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5 Brennan J said (at 541-542):

When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury’s mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.

54. This general statement was adopted and applied by Gibbs CJ and Dawson J (and reaffirmed by Brennan J) in De Jesus v The Queen [1986] HCA 65. Both of those cases involved joinder on the one indictment of charges of rape of more than one victim. In Sutton v The Queen there were three victims of rapes (and/or other sexual assaults and an attempt in relation to one victim) and in De Jesus v The Queen there were two victims. The significance of this feature, tending to favour severance of charges relating to different victims was articulated by McHugh J in KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 at [38]:

[38] In some cases of multiple counts, however, some feature of the evidence may create a risk that the jury will use that particular evidence or a conviction in respect of a count to reason that the accused is the kind of person who would commit the crime charged in another count or counts in the presentment. If that risk exists, the judge is bound to direct the jury that they cannot use that evidence or conviction to convict the accused on the other count or counts unless, of course, the evidence is admissible in respect of that count or counts. An example of such a risk is the accused being charged on the one presentment with offences against different victims and the evidence in respect of one or more counts being inadmissible in respect of the other counts [T (1996) 86 A Crim R 293]. Ordinarily, however, the court should order separate trials where there are different victims, where the evidence in respect of one victim is not relevant to the charge in respect of the other victims and where the joinder of charges creates a risk of prejudice Sutton v The Queen; De Jesus v The Queen]. But in some cases, an application for the trial of separate counts may be refused on the ground that the convenience of trying the charges together far outweighs any risk of prejudice or, more usually, because a separate trial is not sought for example, T (1996) 86 A Crim R 293. If that occurs, a propensity warning will almost certainly be required.

55. It is relevant that in the present case both offences are alleged to have been committed against the same victim in the same location and within a short time of each other. The Crown submits that the acts constituting the two offences are properly to be seen as part of one unified violent transaction. The consideration which informed the statements of principle in Sutton v The Queen and De Jesus v The Queen – namely, the risk that evidence of a crime committed by the accused against one victim would be impermissibly used to support a conclusion that he must have committed a crime against another victim – is not present here. The potential prejudice to this accused in defending the murder charge, of having evidence led concerning the sexual assault upon the victim at about the same time, is subject to quite different considerations from those which arose in the trials of Sutton and De Jesus.

56. The Court of Criminal Appeal has taken the view that the risk of unacceptable prejudice or embarrassment to an accused’s defence is not limited to indictments which charge multiple counts concerning multiple complainants. The risk may arise where all counts are of offences perpetrated against the one victim and where the evidence on each is not cross admissible (for example, as tendency evidence).

57. In Rv Verma (1987) 30 A Crim R 441 the Court of Criminal Appeal considered the trial of an accused on 21 counts of defrauding the Health Insurance Commission (a single victim) in circumstances where the Crown had not sought to rely upon the evidence on any one count as evidence on any other count (under the law relating to similar fact evidence as then applicable). These circumstances were not treated as automatically justifying the trial of all counts together. In the particular circumstances of the case, the Court considered there had been no prejudice to the appellant from having all charges tried at the one time, where the trial judge had given “meticulous directions” in relation to each of six groups into which he divided the counts, identifying with respect to each group the issues which bore upon the jury’s decision.

58. At 446 Hunt J said:

It is, of course, for the accused in each case to demonstrate to the trial judge that there is a risk of impermissible prejudice by reason of a joint trial which cannot sufficiently be cured by direction to the jury. The prospect that such prejudice may arise is essentially one for the trial judge to consider upon the material which the accused chooses to put before him (and that which the Crown may add to it), and in light of the requirements of justice in the particular case.

59. For severance of the charges to be warranted in the present case, where both counts concern unlawful acts against the one victim closely connected in time, I consider the accused must point to some path of reasoning which would be impermissible but which the jury, even in the face of a direction to consider the evidence on each count separately, would be likely to adopt. That is, some path of reasoning by which they would wrongly rely upon the evidence relevant to one count when considering the other.

60. This view is supported by the judgment of Howie J (with whom Hodgson JA and Grove J agreed) in R v El-Hayek [2004] NSWCCA 25. In that case the accused was tried on a charge of armed robbery alleged to have been committed at a park in the presence of a young female. On the same indictment the accused was tried on a charge that shortly afterwards, at a different location, he had sexual intercourse with the young female, who was aged less than 16 years, and supplied her with methylamphetamine. One ground of appeal was the joinder of the charges. A second ground was failure of the trial judge to give specific directions that the jury should not use the evidence which was solely referable to one count in support of the other.

61. At [29] Howie J said:

[29] This ground of appeal [concerning trial of the counts on one indictment] is closely bound up with the second ground of appeal contending that his Honour failed to direct the jury as to the relevance of the evidence led in respect of the various counts and what use they either could or could not make of the evidence relating to one count when considering another count on the indictment. Clearly, if there is a likelihood that the jury might misapply evidence relating to one count when dealing with another, careful directions are required to address that possibility. It may be the case that so great is the risk of unfair prejudice flowing from a joint trial of separate, though related, allegations that no direction, warning or caution may be sufficient to ensure a fair trial of each allegation. In such a case a separate trial will be the only remedy.

62. The court found no error in the trial of the counts together. The evidence of production of a firearm at the park was relevant to an aspect of the defence case on one of the other charges, namely that the complainant was freely consenting to the subsequent sexual acts: [32]. Nor was there error in the trial Judge not having given a specific direction to guard against misuse of evidence on one count in support of the other. With respect to that ground his Honour said this at [48]:

[48] The difficulty that I have with this submission is how the directions sought would have had any practical significance having regard to the facts and issues in the trial. For example, how might the jury have used the evidence relating to the armed robbery for any purpose other than in determining the state of mind of the complainant after she left the park with the appellant? How could the evidence relating to the sexual intercourse of KB, which was not disputed, be used by the jury in any way to determine the allegation of the robbery of Allen? What impermissible line of reasoning did the jury have to be warned against undertaking when determining either of the counts in the indictment by reason of the existence of evidence unrelated to that particular count?

63. The Crown case on count 2 involves a threshold question of whether the child suffered an injury to its rectum at all, as opposed to spontaneous haemorrhage at death. A jury finding on that would depend upon resolution of conflicting expert medical opinion. To establish guilt on the charge of sexual intercourse the Crown must first satisfy the jury beyond reasonable doubt that the haemorrhage is a sign of injury before coming to the question of when it was sustained and whether it must have been the accused who inflicted it. In this respect count 2 is quite different from the murder charge, where the sustaining of fatal injuries is not in issue but a putative innocent explanation is.

64. In contrast with R v El-Hayek, the present is a case where the jury might well misapply evidence which is only referable to the charge of murder when considering the second count. As there is to be no contest that multiple head injuries were found on post-mortem examination of the deceased, the jury could be influenced by the circumstantial evidence that the accused must have inflicted those head injuries when considering whether the rectal haemorrhage was also the result of injury and whether the accused inflicted that as well. Of course a direction would be given to counter such impermissible reasoning but I consider there is a significant risk that it would be asking too much of the jury to expect that the evidence tending to prove the different categories of violence against a child, some to the head and some to the rectum, be strictly compartmentalised.

65. Alternatively it is possible the jury might reason impermissibly from the evidence on the sexual intercourse count to support the murder charge. They might find that the explanation the accused offered to police for at least some of the child’s head injuries (a fall from the trampoline) has support from medical evidence which defence counsel intends to adduce from Dr Duflou. If they should consider that that explanation raises a reasonable doubt about his guilt on the charge of murder, they might impermissibly treat the doubt as dispelled if they should conclude that he inflicted a rectal injury to the child. I consider there is a significant risk that such misapplication of evidence may occur notwithstanding a direction.

66. In Billings v R [2012] NSWCCA 33 a charge of murder was prosecuted on an indictment which also contained counts of robbery and discharging a firearm with intent to inflict grievous bodily harm. The court found no error in the trial of these charges together. In large part that was because at least some of the evidence which tended to establish the robberies and the firearms offences was also circumstantial to the murder. For example, used cartridges found at the scene of the murder corresponded with used cartridges found at the place where the accused was alleged to have discharged the weapon with intent to cause grievous bodily harm.

67. An additional consideration in Billings v R was “the inconvenience that would be occasioned to witnesses, the prosecution and the defence if the trials were separated”: [24]. It was recognised that that consideration could only be attributed limited weight. I consider that it is not a material consideration in favour of joint hearing of the charges in the present case, at all. If it is ordered that the trial proceed on the murder count only the Crown would be able separately to prosecute the sexual intercourse charge with very few witnesses. Predominantly the evidence on that count would be given by medical experts.

Orders

68. For the above reasons I ruled on 21 June 2017 that the evidence summarised at [28] may not be led by the Crown. I ordered pursuant to ss 21 and 29 of the Criminal Procedure Act that the indictment be amended to charge only the count of murder and that the trial proceed on that count. It is a matter for the Director of Public Prosecutions whether he proceeds with the charge of sexual intercourse on a separate indictment filed in the District Court at a later date.

**********

Amendments

21 October 2020 - paragraph [6] - replaced name with IS.

Decision last updated: 21 October 2020