Jackson v R

1. [1]

   HOEBEN CJ AT CL: I agree with Price J and the orders which he proposes.

2. [2]

   WALTON J: I agree with Price J.

3. [3]

   PRICE J:

Introduction

1. [4]

   Upon his arraignment before Huggett DCJ (“the trial judge”) and a jury in the District Court at Sydney on 24 May 2018, the applicant pleaded not guilty to an indictment containing six counts.

2. [5]

   Counts 1 to 4 alleged sexual offences against the complainant AM. The offending was alleged to have occurred in September 2007 when AM was 13 years of age and travelled to Batemans Bay with the applicant to whom he was related through his aunt.

3. [6]

   Count 1 was a charge of aggravated indecent assault on a person under 16 years of age contrary to s 61M(1) of the Crimes Act 1900 (NSW). AM gave evidence that he and the applicant stayed in one of the rooms at the Zorba Motel. The applicant told him to have a shower which he did. The applicant then joined him. Neither of them was wearing clothes. Whilst AM was washing himself, he felt the applicant’s penis rubbing against his anus. The applicant was standing behind him. AM said that the applicant’s penis: “… felt like a hard rock pressing against me … my anus.” The jury found the applicant guilty of this count.

4. [7]

   Count 2 was a charge of aggravated sexual intercourse with a person above the age of 10 years and under 14 years contrary to s 66C(2) of the Crimes Act. AM told the jury that when he and the applicant got out of the shower, he lay on the bed. The applicant fondled and sucked his penis. He did not recall how long this went on for. The jury found the applicant guilty of this count.

5. [8]

   Count 3 was a charge of aggravated attempted sexual intercourse with a person above the age of 10 years and under 14 years contrary to ss 66C(2) and 66D of the Crimes Act. AM gave evidence that on the following day, the applicant told him that he needed a haircut, so they went to a hairdresser at the mall. The hairdresser said that he had lice and would not cut his hair. The applicant spoke to the hairdresser who then cut AM’s hair. After the haircut, the applicant brought lice treatment products and they returned to their motel room to treat AM’s hair.

6. [9]

   When AM went into the shower, the applicant joined him. When washing the product through AM’s hair, the applicant was standing behind him and neither one was wearing clothes. AM gave evidence that whilst his hair was being washed, he felt the applicant’s penis trying to penetrate his anus. He felt a sharp stabbing pain around his anus. AM was not certain if the applicant’s penis had gone into his anus because he had stepped forward to move his body away from the sharp pain. The jury found the applicant not guilty of this count.

7. [10]

   Count 4 was a charge of aggravated sexual intercourse with a person above the age of 10 years and under 14 years contrary to s 66C(2) of the Crimes Act. AM gave evidence that the applicant put a towel on the bed when they both got out of the shower. AM lay on the towel and the applicant sucked his penis. AM said that it was not for a long period but it was not short either. AM told the jury that while the applicant was sucking his penis and after he had stopped, the applicant said to him that he could always tell him to stop and that the applicant would constantly ask whether he was enjoying it or did he like it. The jury found the applicant not guilty of this count.

8. [11]

   Counts 5 and 6 alleged sexual offences against the complainant NC between 23 September 2009 and 13 January 2010. NC was then 6 years old. The applicant was in a relationship with NC’s mother during the relevant period.

9. [12]

   Count 5 was a charge of aggravated indecent assault on a person under the age of 16 years contrary to s 61M(1) of the Crimes Act. NC gave evidence that the applicant took him into a ‘drying room’ at the hotel where they were staying in Sydney and rubbed his private parts under a towel. The applicant stopped when they had to go back to the hotel room. The jury found the applicant not guilty of this count.

10. [13]

    Count 6 was also a charge of aggravated indecent assault on a person under 16 years of age contrary to s 61M(1) of the Crimes Act. NC gave evidence that the applicant took him to a cabin in the Navy base where he worked. Inside the cabin the applicant told NC to lie on the bed and then started rubbing NC’s ‘dick’ under his undies. The jury found the applicant not guilty of this count.

11. [14]

    The Crown relied on tendency evidence in its case against the applicant, namely the evidence of NC and NC’s brother, WC, to show that the applicant had a sexual interest in young males and that he was willing to act on that interest.

12. [15]

    A notice dated 26 February 2018 had been served on the applicant by the Crown which stated that the Crown intended to adduce tendency evidence pursuant to s 97(1) of the Evidence Act 1995 (NSW). The notice, so far as relevant, included the following:

13. [16]

    As the grounds of appeal centre upon the tendency evidence of WC in its application to prove counts 1 and 2, it is unnecessary to recount all of the evidence in the applicant’s trial. It is however, necessary to summarise AM’s evidence of two uncharged acts by the applicant and the tendency evidence of WC.

14. [17]

    AM gave evidence that when he was about seven years old, the applicant came to visit and stayed the night. AM shared a bedroom with his brother ‘J.’ The next morning when AM woke up, the applicant was sleeping on the bedroom floor. When AM and J saw the applicant, they jumped all over him with excitement. They cuddled with the applicant and then J fell asleep. AM remained awake.

15. [18]

    AM told the jury that the applicant put his hand down AM’s Spiderman pyjama pants, fondling and stroking his genitals. AM could not recall if the applicant said anything or did anything else.

16. [19]

    AM gave evidence of a second uncharged act which was alleged to have occurred when he went on a trip to Adelaide with his brother and the applicant. He could not recall when the trip took place or how old he was at the time.

17. [20]

    On one occasion during that trip, AM recalled waking up naked. He was lying on the floor and it was dark. He could feel a sticky, gooey sensation on the lower part of his stomach and between his thighs and legs. The applicant was there, and he was not wearing anything from the waist down. AM could not recall what the applicant was doing. After refreshing his memory from his statement, AM said that the applicant was stroking his own penis and playing with AM’s penis.

18. [21]

    In cross-examination, AM agreed that he had not mentioned the Adelaide trip or the incident in either his first or second statement to police dated 25 September 2015 and 15 February 2017 respectively. He agreed that the first mention of the Adelaide trip and the sexual assault was in his statement dated 21 May 2018. He agreed that his recollection of the Adelaide trip came to him in a flashback. He said that it was his mind reprocessing every single memory that he had with the applicant. The flashback related to all the sexual and explicit things that the applicant had done to him, including what had happened in Adelaide.

19. [22]

    WC gave evidence that his mother dated the applicant when WC was about 10 or 11 years old. They were living in Victoria and the applicant visited them on three or four occasions. When he did so, he stayed at their house. WC told the jury that on two occasions, the applicant sexually assaulted him.

20. [23]

    On the first occasion, WC said that the applicant came into his bedroom when he was about to fall asleep. The applicant went under the covers, pulled his pants down, put his hand around his penis and thrust it in his hand. The applicant pulled WC’s boxer shorts down to his knees and touched him skin to skin. This went on for about 10 minutes. WC pretended to be asleep. The applicant did not say anything but WC could hear him breathing, “deep breaths.”

21. [24]

    WC gave further evidence of a second incident. He stated that it was similar to the first one, except that it occurred on a different day. The applicant came into his bedroom, pulled his boxer shorts down, put his hands around WC’s penis, skin to skin, and ‘thrust it in his hand.’ This went on for roughly the same amount of time and the applicant didn’t say anything. After he was done, the applicant left the room; WC pulled up his pants and went to sleep.

22. [25]

    WC attested that these incidents occurred on different days but could not provide specific dates.

23. [26]

    The applicant did not give evidence in the trial but relied on his answers in two interviews with police on 18 December 2015 and 15 September 2016. The applicant disputed that any of the alleged sexual impropriety had taken place but did not dispute at trial that he had taken AM to Batemans Bay or that he had taken NC to the Navy base in Sydney. The applicant’s case was that AM, NC and WC were unreliable witnesses. As to the Crown’s case on tendency reasoning, it was the applicant’s position that he never engaged in indecent and/or sexual conduct of any type with either AM, NC or WC and the circumstances would not arise for the jury to use tendency reasoning.

The grounds of appeal

1. [27]

   The Notice of Appeal identifies the following grounds:

2. [28]

   In order to consider the various arguments in this appeal, the trial judge’s directions as to tendency must be set out in some detail. Her Honour’s oral directions were accompanied by written directions which were to be read by the members of the jury in conjunction with her Honour’s oral directions. The written directions were in almost identical terms to the oral directions.

3. [29]

   Before turning to the directions on tendency, it is apposite to note that the trial judge’s summing up included directions on compromise of verdicts, the need to consider each count separately, and as to the honesty and reliability of the complainants’ evidence.

4. [30]

   As to compromise of verdicts, her Honour said:

5. [31]

   As to considering each count separately, her Honour said:

6. [32]

   As to the honesty of the complainants’ evidence, her Honour said:

7. [33]

   As to the reliability of the complainants’ evidence, her Honour said:

8. [34]

   The trial judge gave lengthy directions concerning the use that could be made of the tendency evidence. Without detailing all of those directions, her Honour’s summing up included the directions set out below.

9. [35]

   If the jury was to use the tendency evidence led by the Crown, there were two additional matters that would need to be proven beyond reasonable doubt:

10. [36]

    With respect to the tendency evidence of WC:

11. [37]

    They could not use tendency intra-complainant:

12. [38]

    Before using any tendency reasoning, the jury must be satisfied beyond reasonable doubt that the tendency acts occurred, including the honesty and essential accuracy of WC’s evidence, and that the act or acts reveal or demonstrate the tendency alleged by the Crown:

13. [39]

    If they could not conclude beyond reasonable doubt that the tendency acts occurred or that they revealed or demonstrated the alleged tendency, the jury was not to include them in their reasoning:

14. [40]

    They were only to use tendency evidence for the purpose of establishing the tendency:

15. [41]

    And further:

Ground One: In directing the jury that the tendency events alleged by the Crown concerning WC required proof beyond reasonable doubt, there was an unacceptable, appreciable and demonstrable risk that the evidence of WC, if accepted, was elevated to an intermediate fact by the jury or otherwise regarded as an essential and direct causal link in proof of counts 1 and 2 relating to AM.

1. [42]

   In written submissions, the applicant recounted that in the structure and casting of the trial judge’s directions it was open to the jury to regard the evidence of WC as comprising one or two tendency events “capable of supporting counts 1 and 2 and in proof of AM.” This was on the sole basis that satisfaction had been reached at the criminal standard of proof as to one or both of the tendency events alleged by WC. Accordingly, the evidence had no relevance unless proof of that evidence was placed at the same standard as an element or elements of an offence.

2. [43]

   The applicant contended that the effect of the trial judge’s directions as to the tendency evidence was to elevate WC’s evidence “to the level of intermediate fact if found proved beyond reasonable doubt.” The applicant argued that in no sense could the evidence of WC be considered as capable of providing intermediate facts in proof of counts 1 and 2 for AM. WC’s evidence of the applicant’s misconduct with him was in the nature of a strand in the cable as opposed to a link in the chain and no more than a relevant circumstance in the jury’s consideration of the AM counts.

3. [44]

   The applicant submitted that this direction by the trial judge effected a serious unfair prejudice to the applicant because in all of the circumstances “there was an unacceptable, appreciable and demonstrable risk that, if found beyond reasonable doubt, the evidence would be accorded significant or substantial undue weight.”

4. [45]

   The applicant pointed to what was said by the High Court in The Queen v Bauer at [86]:

5. [46]

   The applicant argued that in the circumstances of the present case the relationship between the evidence of WC and AM did not demonstrate a “significant possibility” that the jury might regard the evidence of WC as so closely connected to that of AM as to be indispensable or as part of a direct, causal chain of proof.

6. [47]

   The applicant referred to the following passage in Shepherd v The Queen, [2] where Dawson J said at 579:

7. [48]

   The applicant submitted that in no sense was WC’s evidence part of a temporal series connected to the applicant’s conduct alleged against AM. WC’s evidence was said to be no more than a circumstance able to be taken into account by the jury in considering the evidence of AM which, if accepted, was a strand in the cable and not a link in the chain. Put to the jury as an intermediate fact, WC’s evidence, the applicant argued, could not have passed the test under s 101 of the Evidence Act, as “there was an unacceptable risk that the jury accorded WC’s evidence a status substantially exceeding that of a relevant circumstance of significant (if so regarded) value.”

8. [49]

   Another submission was that the evidence of AM had significant difficulties in respect to the question of reliability and in all the circumstances, in finding counts 1 and 2 proved, there was an appreciable risk that the jury deployed the evidence of WC as an intermediate fact towards proof of those counts.

9. [50]

   In oral submissions, the applicant submitted that Bauer applied to the uncharged acts asserted by WC notwithstanding that he was not a complainant. The applicant noted that Bauer was not known to be the law at the time of the direction, but maintained that the criminal standard direction was erroneous and contrary to Shepherd. It was submitted that the applicant did not benefit from the criminal standard direction being given, and that it was not desirable in the circumstances.

10. [51]

    The Crown contended that Bauer is distinguishable from this case as it referred to single complainant sexual offences cases, and that even if trial judge erred in giving the criminal standard direction, the applicant benefitted from the highest standard of proof being required before the jury could use the evidence of WC against him, and that it was open to the jury to return a verdict of guilty on counts 1 and 2 even if the criminal standard direction was given in error, or if the jury disregarded the evidence of WC entirely.

11. [52]

    The Crown submitted that the trial judge gave the jury a very clear warning against impermissible propensity reasoning and told them that if they found the tendency evidence proved, they could not automatically convict the applicant in relation to the other complainants and that they still needed to go on to consider the truthfulness and accuracy of each individual complainant. The fact that the jury found the applicant not guilty on a number of counts, the Crown contended, indicates that the jury followed the trial judge’s directions.

12. [53]

    The Crown submitted that it did not follow that the criminal standard direction resulted in the jury giving WC’s evidence too much weight, as the jury was directed not to substitute the tendency evidence for the evidence on each count. The Crown submitted that the standard of proof directed is a separate issue as it relates to ss 101 and 137 of the Evidence Act because probative value is to be taken at its highest, [3] and the question of weight is a matter for the jury.

13. [54]

    In written submissions in reply, the applicant argued that Bauer contemplated multiple complainant cases, [4] and submitted that in such cases the possibility of prejudice against an accused is greater due to the possibility of confusion amongst a jury which is tasked with identifying commonalities between multiple witnesses.

14. [55]

    It was further put to this Court that, in circumstances where WC’s evidence was “wrongly elevated as an intermediate fact,” meant “that the possibility of jurors reaching their verdicts upon evidence of propensity unrelated to a specific offence upon an identified occasion that Dawson J describes in S v The Queen (1989) 168 CLR 266, 276, arises.” [5] The applicant submitted that contrary to the views of the trial judge, the fact that two identical events have occurred on separate occasions (in the sense that one came first and one came second) said nothing aside from asserting that the events did not happen at the same time. This was said to speak “to nothing curative of the deficiency of particulars linking the two acts of WC, enlivening a sense of embarrassment corresponding to a denial of ‘the allegations’ as a group or ‘set’.”

15. [56]

    The cornerstone of the applicant’s complaint is the trial judge misdirected the jury as to the standard of proof required before they could use WC’s evidence. Her Honour directed the jury that the Crown was obliged to satisfy them beyond reasonable doubt of:

    1. (1)

       The honesty and essential accuracy of the applicant’s conduct towards him;

    2. (2)

       The applicant’s conduct demonstrated that he was a person with a sexual interest in young male persons; and

    3. (3)

       The applicant acted upon that interest by engaging in indecent and/or sexual activity with young male persons known to him through family and/or personal relationships.

16. [57]

    Her Honour directed the jury before the decision in Bauer. In applying the criminal standard of proof, her Honour was faithfully following what was considered to be the law in New South Wales that the correct standard of proof of tendency evidence in sexual offences is beyond reasonable doubt.

17. [58]

    Guidance about the appropriate standard of proof was provided in HML v The Queen. [6] Hayne J said at 416 [247]:

18. [59]

    Kiefel J (as her Honour then was) said at 500 [506]:

19. [60]

    Gleeson CJ was in dissent on this point, [8] as was Crennan J. [9]

20. [61]

    The opinion of the majority in HML has been applied in this Court. In DJV v R, [10] McClellan CJ at CL (with whom Hidden and Fullerton JJ agreed) said at [30]:

21. [62]

    There have subsequently been many decisions of this Court where the criminal standard has been applied. [11]

22. [63]

    In Doyle v R, [12] Bathurst CJ (with whom Price and Campbell JJ agreed) observed at [129]:

23. [64]

    In Bauer the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) considered in single complainant sexual offences cases that the jury should not ordinarily be directed that the standard of proof of uncharged acts is beyond reasonable doubt.

24. [65]

    Bauer involved a single complainant. In considering the criterion of significant probative value under s 97 of the Evidence Act, the High Court drew a distinction between an accused charged with a number of sexual offences committed against a multiplicity of complainants and an accused charged with a number of sexual offences against a single complainant. [13]

25. [66]

    Notwithstanding that consideration, the passage in the judgment upon which the applicant founds his complaint appears under a heading of directions in single complainant sexual offences cases and further reference is made to “directions ordinarily to be given … in a single complainant sexual offences case.” It is appropriate to quote all of what was said by the High Court at [86]:

26. [67]

    It is not entirely clear whether the High Court’s statement as to the standard of proof was intended to be confined to single complainant sexual assault trials. In the present case, there were two complainants. However, there appears to me to be no logical basis for different standards of proof that are dependent upon the number of complainants.

27. [68]

    In my opinion, this case is not an appropriate vehicle to finally determine this issue. It is ordinarily the case that an accused person favours the application of the criminal standard of proof and not the Crown. In the present case, the usual argumentation has been inverted.

28. [69]

    In any event, should it be accepted that the trial judge misdirected the jury as to the standard of proof required before they could use WC’s evidence, the jury could neither have understood that WC’s evidence was an essential intermediate fact which constituted an indispensable link in the chain of reasoning towards a finding of guilt in counts 1 and 2 nor elevated the weight to be given to that evidence.

29. [70]

    The trial judge gave comprehensive instructions to the jury as to how WC’s evidence must not be used. In addition to the oral directions, [14] the written directions provided to the jury included the following:

30. [71]

    Her Honour’s directions made it plain to the jury the limits on which WC’s evidence could be put to use and that the weight to be given to that evidence was a matter for them. As was said in Gilbert v The Queen, [15] by McHugh J at 425 [31]:

31. [72]

    I am not persuaded there was a risk that WC’s evidence would be accorded significant or substantial undue weight.

32. [73]

    It is evident that the jury paid careful attention to her Honour’s directions. The jury found the applicant not guilty of four of the six counts on the indictment.

33. [74]

    In raising in argument S v The Queen, the applicant appears to be contending that her Honour erred in admitting WC’s evidence when she rejected the arguments advanced by Mr Webb, his trial counsel. Shortly stated, Mr Webb submitted that WC’s evidence was insufficiently particular because he could neither identify which of the two events occurred first nor could he provide any feature to distinguish one event from the other preventing adequate cross-examination and causing embarrassment to the applicant in the conduct of his defence. Mr Webb also contended that WC’s testimony was in reality inadmissible evidence of a generalised guilty passion which created a risk of substitution for the particular conduct alleged in counts 1 to 6.

34. [75]

    The trial judge rejected these arguments in a carefully considered judgment that was delivered on 18 June 2018. Her Honour distinguished S v The Queen. Her Honour said that WC was able to identify two separate occasions when the applicant indecently assaulted him and these two separate occasions were the only occasions the applicant so behaved. There were no remaining occasions not covered by WC’s evidence. The applicant was able, her Honour said, to mount a defence to the conduct alleged and to test WC’s evidence.

35. [76]

    Her Honour considered that a further point of distinction with S v The Queen was that WC’s evidence was not relied upon to prove any particular count on the indictment but was evidence intended only to be used towards providing a foundation for tendency reasoning.

36. [77]

    The first point that should be made about the applicant’s complaint of the trial judge’s rejection of Mr Webb’s argument founded upon S v The Queen is that there is no Ground of Appeal which deals with the issue. The second point is that no error in her Honour’s judgment has been demonstrated.

37. [78]

    I have already rejected the applicant’s arguments regarding the elevation of WC’s evidence to an essential intermediate fact.

38. [79]

    I would reject Ground 1 of the appeal.

Ground Two: In all of the circumstances the directions of the learned trial judge that the tendency events of WC were relevant (but only if proved beyond reasonable doubt) gave rise to an unacceptable risk of compromise by the jury in finding counts 1 and 2 proved.

1. [80]

   The applicant’s written submissions on Ground 2 repeat much of what was argued in respect of Ground 1 and it is unnecessary to recount those submissions as the applicant’s arguments have been rejected.

2. [81]

   The Crown’s written submissions in respect of Ground 2 referred to the trial judge’s directions to the jury not to reach a compromise verdict. The Crown also referred to a Note from the jury to the trial judge in which the jury asked whether they needed to be satisfied beyond reasonable doubt that counts 3 and 4 occurred in Batemans Bay. This question was answered by her Honour in the affirmative. The Crown argued that the differing verdicts in relation to counts 1 to 4 were explicable on the basis that the jury entertained a reasonable doubt that counts 3 and 4 occurred at the Zorba Motel in Batemans Bay as was explained in her Honour’s remarks on sentence.

3. [82]

   The Crown submitted that there was no reason to doubt that this was the case and the guilty verdicts were logically based and not compromise verdicts.

4. [83]

   In submissions in reply, the applicant contended that the Jury Note both highlighted the confusion that the jury had reached concerning how to use tendency and “increased the unacceptable, appreciable, and demonstrable risk relied on by the applicant.”

5. [84]

   The applicant submitted that in further instructing the jury, the trial judge gave a broader, more general direction to the jury on tendency in answer to the Jury Note.

6. [85]

   As to the reason advanced by the Crown for the not guilty verdicts on counts 3 and 4, the applicant submitted that this Court was not bound by the remarks of the trial judge. Furthermore, any explanation of how the jury came to the not guilty verdicts was said to be “impermissible speculation.”

7. [86]

   The Jury Note which was referred to by the Crown in submissions was received by the trial judge when the jury was considering its verdicts. The trial judge read the Jury Note onto the record in the following way:

8. [87]

   The applicant complains that in responding to the jury’s request for “… information/guidance on how we can use tendency?,” her Honour gave a more general direction by not confining the demonstration of the tendency alleged by the Crown to acting upon a sexual interest in young male persons by engaging in indecent and/or sexual activity with young male persons “known to him through family and/or personal relationships.”

9. [88]

   Whilst this issue was raised in argument, the applicant did not seek to amend or add to the Grounds of Appeal. Accordingly, I do not propose to deal with this complaint other than to state that it does not advance the applicant’s Grounds of Appeal.

10. [89]

    It is a logical leap to contend as the applicant does, that the trial judge’s direction on the criminal standard “gave rise to an unacceptable risk of compromise by the jury in finding counts 1 and 2 proved.”

11. [90]

    The trial judge gave a clear warning to the jury that they were not to compromise their verdicts “in any way at all” and reminded them of “the requirement that any verdict … must be unanimous.” [16]

12. [91]

    WC’s evidence was relevant to all of the counts on the indictment. However, the jury found the applicant not guilty of the sexual offending against NC (counts 5 and 6). These verdicts of not guilty strongly suggest that the jury considered each count separately and focussed upon the complainants’ evidence that was relevant to each count.

13. [92]

    It is evident from the Jury Note that the members of the jury were concerned to obtain the trial judge’s direction as to whether they had to be satisfied beyond reasonable doubt that the offence occurred at Batemans Bay as alleged in the indictment for count 3. Count 4 was in similar terms.

14. [93]

    In responding to the jury’s question, her Honour provided the following instruction:

15. [94]

    For counts 3 and 4, the Crown alleged that the sexual offences took place on 30 September 2007 at the Zorba Motel in Batemans Bay. This was on the following morning after the applicant had sexually assaulted AM in the same motel room (counts 1 and 2). The applicant and AM had checked into the hotel on 29 September 2007 and stayed overnight.

16. [95]

    It was AM’s evidence that the applicant sexually assaulted him in the shower whilst he was washing lice treatment product through AM’s hair (count 3) and after they both got out of the shower (count 4). AM gave evidence that prior to that time, he had been with the applicant at the mall. AM’s hair had been cut by a hairdresser. Both he and the applicant then went to the supermarket where the applicant purchased lice treatment product before returning to the motel.

17. [96]

    There was evidence in the trial that checkout time at the Zorba Motel had always been before 10:00am, but one could checkout up to 12:00pm without incurring additional cost.

18. [97]

    Although it is neither necessary nor appropriate to determine the bases upon which the jury reached their verdicts, it is sufficient to state that it is not impermissible speculation to conclude that it was open to the jury, on the evidence in the trial, not to be satisfied beyond reasonable doubt that counts 3 and 4 occurred at the Zorba Motel in Batemans Bay.

19. [98]

    I would reject Ground 2 of the appeal.

The content of the unfair prejudice was the real and appreciable risk that the jury reached a compromise in relation to counts 1 and 2. Given the real possibility that the WC events were accepted and applied as intermediate facts by the jury, the verdicts of guilty ought not be sustained.

1. [99]

   In written submissions, the applicant repeated the contention that WC’s evidence was elevated to an essential intermediate fact by the trial judge’s directions as to the standard of proof. The applicant’s argument was that there was a real and demonstrable possibility that WC’s evidence was regarded in this way. The applicant submitted that if so regarded, the tendency evidence of WC was invested with a probative value by the jury that did not “substantially” outweigh “any prejudicial effect it may have on the defendant” and ss 101 and 137 of the Evidence Act were engaged.

2. [100]

   The Crown pointed out that the applicant’s principal argument was that the requirement of a higher standard of proof of tendency evidence meant that too much weight was given to the evidence by the jury. The Crown referred to the trial judge’s direction to the jury not to substitute the tendency evidence for evidence on each count. The Crown submitted that in terms of whether the standard of proof was in any way relevant the issues under ss 101 and 137 of the Evidence Act was a separate issue.

3. [101]

   The Crown referred to the observation of the High Court in Bauer at [69] that for the purpose of these provisions, the evidence is to be taken at its highest. The question of weight, the Crown said, was a matter for the jury.

4. [102]

   In reply, the applicant argued that the permitted use of WC’s tendency evidence failed to comply with Bauer and WC’s evidence should not have been admitted by reason of s 101(2) of the Evidence Act.

5. [103]

   In oral argument, the applicant accepted that there was a significant degree of overlap with the arguments in Ground 1 but said the focus in this Ground was upon s 101(2) of the Evidence Act.

6. [104]

   Tendency evidence is defined in the Dictionary to the Evidence Act as follows:

7. [105]

   Section 95(1) provides:

8. [106]

   Sections 97(1)(b) and 101(2) of the Evidence Act relevantly provide:

9. [107]

   The “probative value” of evidence is also defined in the Dictionary:

10. [108]

    Before proceeding to deal with Ground 3, it is important to observe that it is for this Court “itself to determine whether [tendency] evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was.” [17]

11. [109]

    In BC v R, [18] this Court (Leeming JA; Ierace and Hidden JJ) with the agreement of the parties, considered at [60] that the High Court’s statement applied to the question of whether the probative value of the evidence was substantially outweighed by any prejudicial effect on the applicant for the purposes of s 101(2), even though Bauer was concerned with s 97.

12. [110]

    WC’s evidence had significant probative value as it was capable of establishing the tendency asserted by the Crown and that he acted upon that tendency. Furthermore, the existence of that tendency made it more likely, to a significant extent, that the applicant acted upon that tendency by committing the sexual offences with which he had been charged.

13. [111]

    I have previously provided my reasons for rejecting the applicant’s arguments upon which Ground 3 are based. [19] There was no real risk of the jury using the tendency evidence improperly in an unfair way. The significant probative value of WC’s evidence substantially outweighed any prejudicial effect on the applicant.

14. [112]

    Ground 3 is not made out.

Rule 4 of the Criminal Appeal Rules

1. [113]

   The Crown argued that Rule 4 applies as Mr Webb failed to raise with the trial judge the standard of proof required for tendency evidence during her Honour’s directions. Although that may be so, Mr Webb did raise this issue with her Honour in oral argument concerning the admissibility of WC’s evidence.

2. [114]

   It is hardly surprising that Mr Webb did not take the point whilst her Honour was summing up.

Orders

1. [115]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Dismiss the appeal.