SA v The King

[2024] NSWCCA 50

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

SA v R [2024] NSWCCA 50

Hearing dates:

1 March 2024

Date of orders:

24 April 2024

Decision date:

24 April 2024

Before:

Ward P at [1]
Davies J at [2]
Garling J at [55]

Decision:

(1) Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against conviction – three counts of indecent assault, sexual assault and sexual touching against younger sister – complainant aged between 12 and 17 years – where complainant’s police statement disclosed earlier instances of abuse at age nine – admitted as context evidence at trial – where evidence went to complainant’s continuing fear and delay in complaint – whether trial judge erred by admitting part of the context evidence involving fellatio – whether act of fellatio exceeded gravity of the counts of indictment because of the complainant’s young age – where no submission to that effect was made at trial – where ground of appeal alleged error when no objection taken at trial as to portions of context evidence – application of r 4.15 of the Criminal Appeal Rules – trial judge properly considered the test in s 137 of the Evidence Act – where proper anti-tendency directions were given – no miscarriage of justice demonstrated – no error in admitting the context evidence – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW) ss 61J, 61KC, 61M, 66A

Evidence Act 1995 (NSW) s 137

Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:

Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72

Flood-Smith v R [2018] NSWCCA 103

Hamilton v The Queen (2021) 274 CLR 531; [2021] HCA 33

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

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

McIlwraith v R [2020] NSWCCA 274

Perish, Anthony v R; Perish, Andrew v R; Lawton v R, Matthew v R (2016) 92 NSWLR 161; [2016] NSWCCA 89

R v Bayden-Clay (2016) 258 CLR 308; [2016] HCA 35

R v Blick [2000] NSWCCA 51; (2001) 111 A Crim R 326

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Texts Cited:

Nil

Category:

Principal judgment

Parties:

SA (Appellant)
The King (Respondent)

Representation:

Counsel:
B Levet (Appellant)
J Styles (Respondent)

Solicitors:
Algalele & Co Solicitors (Appellant)
Director of Public Prosecutions (Respondent)

File Number(s):

2020/256648

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

22 September 2023

Before:

Culver DCJ

File Number(s):

2020/256648

HEADNOTE

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

On 16 June 2023, SA (the appellant) was convicted by a jury of three counts of indecent assault, aggravated sexual intercourse and unlawful sexual touching. He was sentenced to imprisonment for 6 years 6 months with a non-parole period of 4 years 4 months expiring 15 October 2027.

The appellant is the older brother of the complainant. The offending occurred between 2015 and December 2019 when the complainant was aged between 12 and 17 years. Count 2 (aggravated sexual intercourse without consent) occurred sometime in 2017. While their parents were out, the appellant followed the complainant into her room, pushed her face down on the bed and inserted one finger, and then a second finger, into her vagina. This continued for about five minutes.

In the complainant’s first statement to police, she described earlier instances of abuse. This included an act of fellatio when the complainant was aged nine, followed by a threat not to tell anyone. The Crown sought to lead the evidence from the statement as context evidence for the offending. Counsel for the appellant objected to those paragraphs involving the act of fellatio.

The trial judge held that the Crown had identified a proper context and relevance for the complainant’s statement. In doing so, her Honour held that the act of fellatio was not of greater gravity than the allegations on the indictment and that the evidence went to the complainant’s continuing fear about the appellant’s conduct and the delay in her complaint.

The appeal against conviction was brought on one ground as follows:

That her Honour erred in admitting into evidence as context paragraphs 5–8 inclusive of the complainant’s first statement dated 6 December 2019, being Voir Dire Exhibit A on the voir dire of 6 June 2023.

The appellant submitted that the admission of the act of fellatio was likely to provoke an emotional response in the jury, and that in carrying out the evaluative task required by s 137 of the Evidence Act 1995 (NSW), the trial judge had failed to consider the complainant’s young age when determining the gravity of the incident.

The Court (per Davies J, Ward P and Garling J agreeing) held, dismissing the appeal:

1. Where no submission was made to the trial judge that the act of fellatio was of greater gravity because of the complainant’s young age, it cannot be said that the trial judge fell into error. Conviction appeals are not the place for a party to attempt to put forward a different case from that run at first instance: [1] (Ward P); [42]–[43] (Davies J); [55] (Garling J).

   Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460, cited.

2. Where no objection was taken to parts of the context evidence, any consideration of s 137 to exclude the evidence was not engaged: [1] (Ward P); [37]–[40] (Davies J); [55] (Garling J).

   Perish, Anthony v R; Perish, Andrew v R; Lawton v R, Matthew v R (2016) 92 NSWLR 161; [2016] NSWCCA 89; McIlwraith v R [2020] NSWCCA 274; Flood-Smith v R [2018] NSWCCA 103, cited.

3. In respect of the portions of the context evidence to which objection was taken, the trial judge properly considered the test in s 137 and concluded that any prejudice could be met by appropriate directions both during the trial and in the summing up. Where no issue with the adequacy of the directions was taken, and her Honour’s conclusion as to the question of prejudice was correct, no miscarriage of justice occurred: [1] (Ward P); [37]–[41], [44]–[49], [52]–[53] (Davies J); [55] (Garling J).

   Hamilton v The Queen (2021) 274 CLR 531; [2021] HCA 33; R v Bayden-Clay (2016) 258 CLR 308; [2016] HCA 35; Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72; IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, cited.

Judgment

1. WARD P:   I agree with Davies J.

2. DAVIES J:   The appellant stood trial before her Honour Judge Culver and a jury on the following charges:

Count 1: Indecent assault, victim under the age of 16 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 10 years and there is a standard non-parole period of 8 years.

Count 2: Aggravated sexual intercourse, victim under the age of 16 years, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 20 years and there is a standard non-parole period of 10 years.

Count 3: Sexually touch another person without consent, contrary to s 61KC(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 5 years and there is no standard non-parole period.

3. On 16 June 2023, the jury returned verdicts of guilty to each of the counts.

4. On 22 September 2023 Judge Culver sentenced the appellant to an aggregate sentence for counts 2 and 3 to imprisonment for 6 years 6 months commencing 16 June 2023 and expiring 15 December 2029 with a non-parole period of 4 years 4 months expiring 15 October 2027.

5. In respect of count 1, Judge Culver sentenced the appellant to a community correction order for 2 years commencing 22 September 2023.

6. The appellant now appeals against his conviction on one ground as follows:

That her Honour erred in admitting into evidence as context paragraphs 5-8 inclusive of the complainant's first statement dated 6 December 2019, being Voir Dire Exhibit A on the voir dire of 6 June 2023.

7. There is no appeal against the sentences imposed.

The offending

8. The appellant is one of four children to his parents, and is the older brother of the complainant. He was born in November 1995. The complainant was born in February 2002.

9. The offending in count 1 occurred at sometime in 2015 when the appellant was aged 19 or 20 and the complainant was aged 12 or 13.

10. The family had been to the wedding of a cousin of the appellant and the complainant, and they were heading home after midnight. The complainant’s sister and her other brother were in one car and the complainant was with the appellant in his car.

11. On the way home they stopped at McDonald’s. Shortly afterwards, when they were near home, the appellant said to the complainant that he wanted a kiss on the lips as a thank you for stopping at McDonald’s. She said, “No”, and that she was not going to do that. The appellant put his hand on her thigh – she was wearing a short dress. The appellant was squeezing her thigh and it was hurting. He kept pressuring her to kiss him and she kept saying no.

12. Eventually, she said that if he did not stop she would jump out of the car, and he would have to explain to their parents why she had jumped out of a moving car. That caused him to stop.

13. Count 2 occurred sometime in 2017 when the complainant was aged 14 or 15 years. At that time, the complainant’s sister had been married and was living elsewhere. On the day in question, her parents had gone to her uncle’s house. The only people at home were the complainant, the appellant, and their eldest brother.

14. The complainant was watching her favourite television show, when the appellant appeared and sat next to her. After a short time, the appellant started squeezing her shoulder. When the episode finished she got up to leave but he tried to persuade her to watch another episode. She said, “No”, and was walking towards her room when she noticed that he stood up too. She ran to her room and he ran after her. She closed the door but he pushed it open.

15. He then pushed her onto her bed. She was screaming and thrashing around, trying to get away. He had her face down on the bed with her hands behind her back and he started pulling her pants down as well as her underwear.

16. She said that the appellant was afraid that the older brother would wake up because she was screaming and he pushed her head into the blankets. He then inserted one finger into her vagina, and then a second finger. He kept pushing them in and out for about five minutes while she was screaming and thrashing around, trying to get free of him. He was telling her to be quiet and not to move, but she was telling him to get away from her and that what he was doing was wrong. Eventually he pulled his fingers out of her and left the room.

17. The complainant said that she was crying and felt dirty. There was blood coming out of her vagina and it hurt. She locked herself in her room for two days.

18. Count 3 occurred on either 30 November 2019 or 1 December 2019. At the time, the complainant was in the living room of her house, her mother was in the kitchen, and her father was changing a light bulb in the hallway. The appellant came into the living room and started to tickle her. He then started to touch her breasts area, squeezing her breasts and touching her thighs. He put his hand on the outside of her vagina and rubbed around in that area.

19. The complainant was screaming at him to stop and to get off her. He did not do so. She said after a few minutes of her screaming, her father started screaming at the appellant to stop and to get away from her.

20. Shortly after this incident, the complainant left home and went to stay with friends. She told them what had happened. Thereafter she told her boyfriend, the Deputy Principal of her school and, finally, the police.

The context evidence

21. Before the jury was empanelled a voir dire was held in respect to evidence which the Crown sought to lead as context evidence for the offending. This consisted of pars 5-9, 12 and 13 of the complainant’s first statement to the police dated 6 December 2019. These paragraphs are as follows:

5.   When I was nine years old living in Syria with my family it was about a week or two before we come to Australia. We were living in an apartment when the power went out this night and my brother [SA] called me up to the attic to play something. I went up to the attic and when I got up there [SA] took off my clothes and he sat me on his lap with my back against his chest. [SA] started touching me everywhere my upper body and started going lower and he inserted his finger inside my vagina and I said “No” but he didn't stop and he covered my mouth with his hand and he started moving his finger in and out of my vagina. I tried to get loose of his hold by punching and kicking him. [SA] took his finger out of my vagina and he took his hand off my mouth.

6.   [SA] told me to suck his dick and I said “No” he started pressuring me and I didn't know what was happening and I trusted him. [SA] took his penis out of his pants and I then started sucking his penis because I felt pressured to do it even though I didn’t want to. I wasn't doing it for long when the power came back on and my parents called out for [SA]. [SA] stopped me from sucking his penis and told me to put my clothes back on and he said “don’t tell anyone about this or he will hurt me”. [SA] left the attic and I got dressed.

7.   [SA], my sister [NA] and I shared a bedroom at this apartment. The next night [SA] came over to me in our bedroom when he thought my sister was asleep. When he was at my bed my sister said something in her sleep and he got scared she was awake, so he went back to his bed and nothing happened that night.

8.   After this I wouldn't go to bed or got (sic) sleep until [SA] went to sleep or I would ask my parents if I could sleep with them as I was scared that he would came back into the room. My parents wouldn't let me sleep with them, so I would have to sleep in my bed a (sic) pray that he would be asleep.

9.   The first year we were in Australia my brother didn’t do anything to me. There was only one time when I went into [SA]’s bedroom and he told me to close the door behind me which I did but I was scared. [SA] pulled the sheets down and he was naked. I immediately left the room.

…

12.   After this there were several times where [SA] would tell me to come into his room to get his dirty clothes out of his room. When I went into the room he would close the door and he would get a hold of my hands and hold them with one of his hands while using his other hand to touch me on the breast, bottom and he would pull your (sic) pants down to my knees. He would try and put his finger inside my vagina, but I would move around and scream, and he would stop trying I would assume in case someone came into the room. I don't know how many times this happened in his room, but I know it was few times which was between 2016 and 2018.

13.   Towards the end of last year [SA] started to do things wherever we were but he would do things differently. It didn't matter where we were he would just start tickling me, so people would think he was mucking around. While he was tickling me, he would start touching my breast and the outside of my pants around my vagina area. I would tell him to stop but he hasn’t stopped and continues doing it.   

(reproduced as in original; italics added)      

22. Counsel for the appellant objected only to pars 6, 7 and 8. During the course of argument, the trial judge asked counsel for the appellant if he was objecting to the part of the last sentence of par 6 which read:

He said, “Don’t tell anyone about this or he will hurt me”.

Counsel said he would accept that that would provide some context and, in answer to the trial judge, agreed that the objection to context in that paragraph was confined to the act of fellatio. Accordingly, all that was objected to is the italicised portions set out at [21] above. What is contained in pars 5 and 6 is hereinafter referred to as “the Syrian incident”.

The trial judge’s reasons

23. At the conclusion of the voir dire, the trial judge delivered brief ex tempore reasons. Her Honour first considered that the Crown had identified a proper context and relevance for pars 5, 9, 12 and 13, noting that they were not the subject of objection. Her Honour then went on to say:

I turn now to consider the paragraphs for which objection is specifically made. Firstly, in para 5 (scil. 6) it is submitted that the act of fellatio bears prejudice. Prejudice in my view might arise if there were to be alleged conduct of greater gravity than the allegations on the indictment. I am well aware of the authorities that refer to the fact that there is no hierarchy of seriousness when it comes to sexual acts or intercourse and that the Court must consider each case in the circumstances arising for the particular case. In this case, one of the counts on the indictment alleges digital penetration by the accused of his sister, the complainant, using firstly one and then two fingers. It is said that occurred for some 5 minutes. That is count 2 on the indictment. In my view, the act of fellatio alleged in para 6, does not in any way eclipse the gravity of the allegation of digital penetration charged on the indictment and therefore I do not see that the type of prejudice that sometimes is said to arise where there is a different character, namely a greater gravity of the offending conduct alleged in the context evidence, which would eclipse the gravity of the charge on the indictment. That does not arise here.

Furthermore, I do see there is a context arising as relevantly articulated by the Crown, namely the threat for which there is no objection is intertwined with the act of fellatio. The complainant’s credibility can well be anticipated to be starkly raised before the jury. In order to understand and test that credibility, the Crown case will involve the jury accepting that the complainant remained in the same household as the accused without there being a complaint until she was 17. The threat must be seen as bearing relevance to that position.

The threat in para 6 is intertwined with the allegation of fellatio. In my view, to remove the allegation of fellatio would provide a sense of artificiality to the complainant’s allegations. The complainant speaks in her second interview for the count 1 allegation of not really understanding what was going on. She says in the statement dated 17 May 2022 - I am sorry, she does not say she did not understand what is going on, she said she felt scared and felt unsafe. Without a full understanding of the context evidence spoken of in para 6, that might not have a full context.

That feeling of being scared and unsafe following the accused rubbing her thigh as alleged in count 1, and his hand rising up her thigh, and him demanding a kiss from her might not be properly understood. In my view, it is the circumstances of the experience in Syria, including the act of fellatio as alleged, that provides context to the complainant’s fear. She was at that time, of that allegation, after all, nine years old.

Furthermore with respect to paras 7 and 8, the Crown case will ask the jury to accept that despite serious alleged abuse occurring to her at the hands of her brother, she did not complain to her parents. Without the understanding of paras 7 and 8, that might seem somewhat remarkable.

In para 7 what is revealed is that - on the complainant’s version - the accused the very next night after the first incident described in paras 5 and 6 approached the complainant whilst she was in the bed in the same bedroom. She said he got scared. She said that her sister said something, and the accused went back to bed.

In the circumstances, without that, it might seem somewhat remarkable that having engaged in the conduct as alleged in paras 5 and 6, there was not this approach, even though they were sharing the same bedroom. Furthermore, para 8 bears significance insofar as the complainant says she took action in asking her parents if she could sleep with them, as she was scared that the accused would come back into the room, but her parents would not let her sleep with them. So, again, there is this relevance where the complainant persisted in the house from this young age without complaint. The Court has been put on notice that one of the defence challenges to the complainant’s credibility will be with respect to her delay in complaint and the timing of her complaint when she was 17.

In all of the circumstances, I do see that paras 6, 7, and 8 bear relevance. Their probative value as articulated by the Crown arises from the circumstance that the accused told the complainant not to tell anyone and threatened her after the act of fellatio. That goes to the complainant’s level of continuing fear about his conduct and the delay in her complaint. Furthermore, as I said, I do not find that the act of fellatio was prejudicial insofar as the gravity of the conduct alleged on the indictment is concerned.

I am of the view that s 137 of the Evidence Act does not apply to exclude paras 6, 7, and 8 as being available to the Crown as context evidence. The evidence can be properly admitted with appropriate directions to the Jury warning them against using those paragraphs as tendency evidence and explaining that their only relevance is as to the context of the allegations on the indictment.

(emphasis added)

Submissions

24. The appellant submitted that her Honour was wrong in holding that the conduct alleged in the context evidence was not of greater gravity than the allegations on the indictment. The most serious count on the indictment was count 2, being aggravated sexual assault, victim under the age of 16 years, which carries a maximum penalty of 20 years’ imprisonment, and was said to have occurred at a time when the complainant was 14 or 15 years of age. On the other hand, the uncharged context evidence involved the complainant when she was just nine years of age. Had such conduct occurred in New South Wales it would have been the subject of a charge contrary to s 66A of the Crimes Act of sexual intercourse with a child under 10 years of age, which carried a maximum penalty of life imprisonment.

25. The appellant submitted that in comparing the proposed context evidence with the conduct charged, her Honour should not simply have been comparing digital vaginal penetration with fellatio. She should have had regard to the age of the complainant at the time of the proposed context evidence. In such circumstances there would then be no difficulty in determining which conduct was of the greater gravity. The appellant submitted that this factor was not drawn to her Honour's attention and her Honour did not consider it. The appellant submitted that his counsel at the voir dire indicated to the trial judge that the basis of the Syrian incident being more serious was that it involved fellatio, and not that the age of the complainant was relevant.

26. The appellant submitted that s 137 of the Evidence Act 1995 (NSW) is mandatory in its terms, and does not rely on the objection having been expressly taken. The appellant submitted that in R v Blick [2000] NSWCCA 51; (2001) 111 A Crim R 326, Sheller JA at [20] said that s 137 did not involve the exercise of a discretion, and that if the Court comes to the conclusion that the probative value of evidence is outweighed by the danger of unfair prejudice, there is no residual discretion.

27. The appellant submitted that the only probative value the context evidence had was that it could go some way towards explaining the complainant's delay in making a complaint. The prejudice was the danger of the jury engaging in tendency reasoning, or the danger of the jury being so horrified as to the nature of the uncharged conduct that they wished to punish the appellant. In that way, the trial judge did not engage in a proper balancing exercise.

28. The appellant submitted that her Honour applied the wrong test when she said that she did not find that the act of fellatio was prejudicial insofar as the gravity of the conduct on the indictment was concerned. The appellant submitted that it was prejudicial and the question the trial judge should have asked was whether it was unfairly prejudicial, and her Honour ought to have been asking the question about unfair prejudice having regard to the complainant’s age at the time of the Syrian incident.

29. The appellant submitted that the trial judge should have excluded any context evidence said to have taken place at a time when the complainant was aged under ten years. In that way, she should have excluded pars 5-8 of the statement.

30. The Crown submitted that, since no objection was made before the trial judge to the admissibility of par 5 and part of par 6, r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applies. Further, s 137 was not engaged for those portions to which no objection was taken, in reliance on McIlwraith v R [2020] NSWCCA 274 at [32].

31. The Crown submitted that the evidence was relevant to the delay in reporting the conduct and to the complainant remaining in the same house as the appellant until the time she first made complaint. The Crown submitted that the appellant conceded the relevance of the evidence by accepting that it could go some way towards explaining the complainant’s delay in making complaint. The Crown submitted that it was thereafter for the jury to weigh the evidence. The Crown submitted that the evidence was relevant and, once factually accepted, was highly probative of the reasons for delay in making complaint while she remained in the same house as the appellant.

32. The Crown submitted that the timing and nature of the report was put starkly in issue by the appellant’s trial counsel in cross examination. The cross examination had a strong focus on the nature and completeness of the complaints and the two statements to police. The Crown submitted that, as such, the age of the complainant at the time of the context evidence was not relevant to the probative value of the evidence on a question of admissibility.

33. The Crown submitted that the assumption is that juries follow directions, and in the present case, anti-tendency directions were given about the context evidence.

34. The Crown submitted that the Syrian conduct consisted of three related parts, being the digital penetration, the fellatio, and the threat of violence following the fellatio. The Crown submitted that those acts were one continual course of conduct and that the threat by the appellant was intertwined with the act of fellatio.

35. The Crown submitted that experienced trial counsel expressly took no objection to the bulk of the context evidence, and an objective assessment of that decision does not find it wanting. The Crown submitted that once the Syrian evidence of the threat to the complainant and the related digital penetration was admitted, any prejudice flowing from the fellatio evidence was marginal and could not be seen as unfairly prejudicial.

Consideration

36. The two principal points made by the appellant were that the admission of the evidence of the Syrian incident was likely to provoke an emotional response in the jury in a way that might result in the jury using the evidence as tendency evidence, and that in carrying out the evaluative task required by s 137, the trial judge failed to consider that the complainant was a prepubescent child at the time of the Syrian incident, so that the gravity of that incident much exceeded the gravity of the events the subject of the three counts charged against the appellant. The latter point was said to be demonstrated by the fact that if the act of the fellatio had occurred in New South Wales at the time, the maximum penalty was life imprisonment, compared to a maximum penalty of 20 years’ imprisonment for count 2, the most significant of the counts charged. In relation to the former point, the appellant relied on what was said in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [17]:

The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. 

37. There are two particular difficulties for the appellant in relation to these submissions. First, no objection was taken by the appellant’s trial counsel to the admission of par 5 of the statement. That being so, any consideration of s 137 of the Evidence Act to exclude the evidence was not engaged because, in the absence of any objection made under that section, the trial judge was not required to form any view as to whether its probative value outweighed the danger of its unfair prejudice.

38. This Court held in Perish, Anthony v R; Perish, Andrew v R; Lawton v R, Matthew v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 at [261]-[270] that the line of authority holding that the construction of the words “not admissible” means “not admissible over objection” was not plainly wrong.

39. In McIlwraith, Meagher JA, with whom Fullerton & Button JJ agreed, said:

[20]   However, as McHugh J observed in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72], where “the appellant has failed to object to evidence or failed to ask for a direction concerning evidence” the trial judge will have made no error of law within this criterion because he or she has not been asked for and given a ruling: see also Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 at [49] (McHugh and Gummow JJ). In that event, as McHugh J also observed in Papakosmas at [72], an appeal relying on the wrong admission of evidence that was not objected to can only succeed if this Court is satisfied that the admission of the evidence has caused a “miscarriage of justice” (Criminal Appeal Act, s 6(1)). In that context, rule 4 of the Criminal Appeal Rules (NSW) is likely to apply.

…

[32]… That evidence was not objected to and accordingly was admissible as opinion evidence, the opinion rule (s 76) only making evidence of an opinion inadmissible over objection: Perish at [261]-[271]. Its mandatory exclusion under s 137 was not engaged because in the absence of any objection made under that section the trial judge was not required to form any view as to whether its probative value outweighed the danger of its unfair prejudice. Accordingly, no question of leave under rule 4 arises in respect of ground 1 as originally formulated. …

40. In Flood-Smith v R [2018] NSWCCA 103, Hoeben CJ at CL (Walton & Button JJ agreeing) said at [115]:

There is considerable authority from this Court to the effect that s 137 has no application unless an objection to the evidence is actually taken (FDP v R [2008] NSWCCA 317; 74 NSWLR 645, Shepherd v R [2011] NSWCCA 245; Poniris v R [2014] NSWCCA 100 and Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89). While there is authority to the contrary (R v Le [2002] NSWCCA 186; 54 NSWLR 474 and Steve v R [2008] NSWCCA 231; 189 A Crim R 68) the better view is, in my opinion, that set out in FDP v R and Perish v R, i.e. that s 137 only applies if evidence is wrongly admitted over objection.

41. Secondly, as the appellant accepts, the trial judge gave proper directions both during the trial and in the summing up in relation to the proper use of context evidence.

42. No submission was made to the trial judge that what was alleged in par 6 of the statement was of greater gravity because of the age of the complainant, or on the related basis that if the act had occurred in New South Wales at the time the maximum penalty was considerably greater. Submissions were made only about the different nature of what was said to have occurred in par 6. It is difficult to see how the trial judge can be said to have fallen into error in not rejecting the evidence on a basis not put to her. What was said in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [77] and [79] in relation to sentence appeals is equally applicable to conviction appeals. This Court is not the place for a party to attempt to put forward a different case from that run at first instance.

43. Further, although the appellant submitted in this Court that the issue of different maximum penalties was significant in terms of the way the jury would regard the context evidence, there is no evidence that the jury would be aware of what the maximum penalties would be for the different acts whether charged or uncharged. In terms of maximum penalty, the act perpetrated on the complainant described in par 5 fell into the same category as the act described in par 6. Both amounted to sexual intercourse with a child under the age of 10. No objection was taken to the evidence concerning the offence described in par 5.

44. Leave is required under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in relation to par 5 and the concluding portion of par 6. The fact that experienced trial counsel (not counsel who appeared at the hearing of the appeal) did not object to what was contained in par 5 and the final portion of par 6, is a strong indication in the atmosphere of the trial and the consideration of the evidence on the voir dire that counsel saw no injustice in the evidence going before the jury: Hamilton v The Queen (2021) 274 CLR 531; [2021] HCA 33 at [54], and see also R v Bayden-Clay (2016) 258 CLR 308; [2016] HCA 35 at 48; or that its probative value was outweighed by unfair prejudice to the appellant.

45. The trial judge determined that the probative value of the evidence arose from the circumstance that the appellant told the complainant not to tell anyone, and threatened her after the act of fellatio. Her Honour held that this evidence went to her level of continuing fear about the appellant’s conduct and the delay in her complaint. Mr Levet of counsel for the appellant accepted that the probative value went to the complainant’s delay in making complaint. Her Honour’s conclusion on probative value was correct.

46. Her Honour was also correct to conclude that the threat made, to which no objection was taken, was “intertwined” with the act of fellatio, and that rejecting the evidence of fellatio would provide a sense of artificiality to the threat.

47. The trial judge’s principal consideration was the issue of prejudice by reason of par 6 detailing the act of fellatio. It may be accepted that her Honour referred on a number of occasion to “prejudice”, when the test in s 137 refers to the probative value being outweighed by the danger of “unfair prejudice”. If “prejudice” was the test her Honour was employing, that wrong test was favourable to the appellant because, in effect, the appellant was not required to show that the evidence would be unfairly prejudicial.

48. It is significant, in that regard, that the submissions made to her Honour by trial counsel referred only to “prejudice” and not “unfair prejudice”, and probably explains her Honour’s terminology. Counsel said:

But it is principally, yes, paras 6, 7 and 8 which, I submit, carry a level of prejudice - particularly para 6, because the nature of the allegation, which is not charged, carries a level of prejudice which is substantial and which outweighs what would be the probative value of that evidence in light of the admission of para 5. In my submission, it doesn’t really - you’ve got the context in para 5, but para 6 contains an allegation which is quite different to the allegations which are the subject of charges - although it’s not tendency evidence, but in any event, in my submission the prejudicial nature of that, given that it’s not charged, for obvious reasons, is such that the admission of the content of para 5 gives the necessary context and allows the submissions that need to be made, and/or the context, particularly of the complaint that comes sometime later, understood.

…

Well para 7 I object to. It involves no misconduct on his part on the face of it. It involves a degree of conjecture on the part of the complainant and doesn’t in my submission appear to provide any particular context to the allegations which are the subject of the counts which arise some years later and in my submission it’s barely relevant as context evidence, even if it’s barely relevant it has prejudice occasioned to it so I would object to that. In my submission that doesn’t take the case against the accused in terms of context evidence any further.

(emphasis added)

49. Despite the terminology used, it seems clear that, in substance, her Honour properly considered the test in s 137. Evidence is unfairly prejudicial if the jury is likely to give the evidence more weight than it deserves, when the nature or content of the evidence may inflame the jury or divert the jurors from their task, or when there is a risk the evidence may be misused by the jury: Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 at [51]; IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [74].

50. Her Honour’s approach of balancing the gravity of the act of fellatio with the counts on the indictment was an appropriate consideration of whether the evidence might inflame or divert the jury, and her Honour’s directions of the proper way the evidence could be used were the appropriate way to deal with the possibility that the jury might misuse the evidence.

51. Her Honour concluded, in assessing the question of prejudice, that the gravity of the act of fellatio did not eclipse the gravity of the digital penetration charged on the indictment. Given that the act of fellatio followed the act of digital penetration to which no objection was taken, her Honour’s conclusion on the gravity of the act was correct. The offending constituting count 2 in the indictment was a serious instance of the offence charged, notwithstanding that the Syrian incident involved sexual acts when the complainant was some years younger. Her Honour then concluded that any prejudice could be met by appropriate directions including an anti-tendency direction. The appellant does not dispute that such directions were given. Her Honour’s conclusion in that regard was correct.

52. No miscarriage of justice is demonstrated in relation to the admission of those portions of the complainant’s statement to which objection was not taken at trial, and leave should be refused under r 4.15. In relation to the other portions of the context evidence, no error is shown.

53. In my opinion, the ground of appeal should be rejected.

Conclusion

54. I propose the following order:

1. Dismiss the appeal.

55. GARLING J:      I agree with Davies J that the appeal ought be dismissed. I agree with his Honour’s reasons for making that order.

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Amendments

29 April 2024 - Para [44] amended

Decision last updated: 29 April 2024