SA v R

1. [1]

   WARD P: I agree with Davies J.

2. [2]

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

3. [3]

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

4. [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. [5]

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

6. [6]

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

7. [7]

   There is no appeal against the sentences imposed.

The offending

1. [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.

2. [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.

3. [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.

4. [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.

5. [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.

6. [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.

7. [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.

8. [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.

9. [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.

10. [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.

11. [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.

12. [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.

13. [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

1. [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:

2. [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:

The trial judge’s reasons

1. [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:

Submissions

1. [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.

2. [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.

3. [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.

4. [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.

5. [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.

6. [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.

7. [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].

8. [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.

9. [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.

10. [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.

11. [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.

12. [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

1. [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]:

2. [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.

3. [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.

4. [39]

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

5. [40]

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

6. [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.

7. [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.

8. [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.

9. [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.

10. [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.

11. [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.

12. [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.

13. [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:

14. [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].

15. [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.

16. [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.

17. [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.

18. [53]

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

Conclusion

1. [54]

   I propose the following order:

   1. (1)

      Dismiss the appeal.

2. [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.