R v GM

HOEBEN CJ at CL:

Details of the four sisters and the other complainants are as follows:

An indictment containing six counts of various sexual offences was presented by the Crown against the respondent which related to three of the five principal witnesses – CM, SM and JC. The complaints made by the other two sisters (JM and HM) were relied upon as tendency evidence by the Crown in respect of all counts on the indictment. The Crown served a tendency notice referring to all five persons. In addition to the tendency evidence from JM and HM, the Crown sought to rely upon the evidence of each of the complainants named on the indictment as tendency evidence in respect of all the other counts on the indictment.

The counts on the indictment were as follows:

There were other incidents not charged. These involved the sisters.

The following matters were raised in the tendency notice, dated 29 May 2014.

Before the trial, the respondent filed a notice of motion seeking orders for a separate trial in respect of the counts relating to JC (counts 4, 5 and 6). The respondent sought to exclude the evidence of HM and JM (being relied upon by the Crown only as tendency evidence) in respect of any count on the indictment. The respondent also sought to prevent any evidence from any of the sisters being admitted as tendency evidence against the respondent in respect of the counts which related to JC.

On 16 March 2015 the respondent was arraigned and pleaded not guilty at Wagga Wagga District Court. Her Honour English DCJ then heard legal argument in relation to the respondent’s notice of motion. The evidence before her Honour comprised statements of the four sisters and JC, as well as statements from the mother of the four sisters and the parents of JC. All of those persons had given evidence in earlier committal proceedings and transcripts of their evidence were before her Honour. One of the sisters, JM, did not give evidence in the committal proceedings.

The orders made by her Honour on 18 March 2015 were:

Although her Honour made no specific mention of the evidence of HM and JM not being admitted as tendency evidence in respect of the complainant CM (as well as SM), the parties approached the matter on the basis that this was an oversight and that her Honour’s rejection of the proposed tendency evidence included that circumstance. I agree with that approach and I have dealt with this matter on the basis that her Honour made all the orders sought by the respondent in his notice of motion.

Following her Honour’s judgment, the Crown asked for time to consider its position. On 19 March 2015 the Crown sought to have her Honour revisit her ruling in light of the decision of Jones v R [2014] NSWCCA 280 which had not been referred to in argument before her, either by the Crown or the respondent. Because Jones v R was subject to a non-publication order, it had only been brought to the Crown Prosecutor’s attention overnight. The Crown acknowledged, in the light of the decision in Jones, that he had erred in agreeing with the respondent that Hoch v The Queen [1988] HCA 50; 165 CLR 292 set out the correct test for considering questions of concoction and contamination in the context of an application to rely upon tendency evidence and accordingly that Hodgson JA had correctly stated the law in BP v R; R v BP [2010] NSWCCA 303.

Further submissions were made by both sides on 19 March 2015. Her Honour indicated that she did not intend to reverse her ruling. She further stated “I will give further reasons if so required Mr Crown”. At the time the Crown responded that he did not require further reasons. Subsequently when a transcript became available, a request was forwarded by the Crown to her Honour to provide the further reasons which she had foreshadowed on 19 March 2015. On 12 June 2015 her Honour’s Associate notified the Crown that “her Honour does not propose to provide further reasons in the matter”. In the proceedings in this Court, the parties proceeded on the basis that the judgment under consideration was that delivered by her Honour on 18 March 2015. I have approached the matter on the same basis.

The application in this Court is an appeal by the Crown pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW) against her Honour’s order that the indictment be severed and an appeal pursuant to s 5F(3A) against her Honour’s ruling in respect of tendency evidence on the basis that it has substantially weakened the Crown case.

The four sisters grew up on a farm in a rural town in the Riverina area. The respondent and his wife lived on the neighbouring farm. The respondent was the older brother of the father of the four sisters. The respondent had no children of his own. The sisters moved to Wagga Wagga when their farm was sold in 1980 (which was when JM was aged about 14, CM was about 13, and the twins SM and HM were about 11). Before then the sisters were regular visitors to the respondent’s farm where they would drive in his ute and ride on motor bikes. The respondent gave them driving lessons in his ute. Each of the four sisters described sexually inappropriate behaviour by the respondent during the course of some of those visits from a young age.

The background to the charges against the respondent was as follows. Count 1 related to a specific occasion when CM was aged 11 and the respondent came into his lounge-room after a shower when all the sisters were present and tucked his penis between his legs and said to them “look at me, don’t I look like a girl”. Count 2 related to another occasion when CM was aged 12 and the respondent was on the back of a motorcycle being driven by her. He put his hand down her pants and digitally penetrated her vagina. Count 3 related to an occasion when the respondent and SM were in his ute and the respondent ran his hand up her leg onto her genital area.

In 1983, a few years after the sisters had moved away from the farm, the unrelated complainant, JC, moved with her family into that property. JC had just had her first birthday. She had three brothers and over the years her family got to know the respondent and his wife well and her parents became close to them. She learned how to ride a motorbike from an early age.

As children they would go to the respondent’s farm because he always had better motorbikes and quad bikes. The respondent taught her to ride the quad bikes from when she was aged 5 – 6 years old. She recalled him putting his hand down her pants and touching her vagina during these rides. At about the same age the respondent would also take her around the property in his farm ute and teach her to drive. While she was steering, the respondent would put his hand down her shirt and touch her breasts and put his hand down into her vagina and digitally penetrate her. This continued until she was in about year 7 – 8 when she stopped going to the respondent’s property. JC also alleged that as she was getting older, the respondent would make comments about her breasts and vagina developing.

The details of the charges brought against the respondent relating to her (counts 4 – 6) are as follows. Count 4 involved an incident when JC was aged about 12 when the respondent had taken her for a ride around his property on his new Harley Davidson motorcycle. He stopped the bike and rubbed her breasts and then digitally penetrated her.

Count 5 is also alleged to have occurred when JC was aged 12. It related to an occasion when she was riding with the respondent on a quad bike when he told her to pull over on a dirt track. He then performed cunnilingus on her.

Count 6 occurred about six months later and involved the respondent touching JC’s breasts and digitally penetrating her after she had been riding on the back of his motorcycle.

A summary of the evidence before her Honour, as set out in the statements and committal transcripts, is as follows. JM (a tendency witness) did not give evidence in the committal proceedings. The following comes from her statement of 11 May 2012. The first instance she could recall occurred in 1969. She was seated in the respondent’s Land Rover. She was sitting next to him and she could recall him running his hand up her leg. She said that that type of behaviour continued for years. Sometimes the respondent would touch her underneath her underwear and would make sounds while he did so.

JM could recall another occasion when the respondent owned a GT Falcon and she was seated in the front seat and he ran his hand up her leg. A similar incident occurred while they were near a group of trees on the farm, but she could not remember specific details. She could recall witnessing the respondent touching her sisters in a similar fashion.

In approximately 1978 she was in year 7 at school and the respondent requested she take him on her motorbike to check something in a paddock. He sat behind her on the motorbike and he touched her on the breasts on the outside of her clothing. She ordered him to stop and he did so.

The family moved to Wagga Wagga in 1980. Between 1981 and 1983 JM’s parents went away for a weekend and the sisters were being cared for by the respondent and his wife in the Wagga Wagga house. The respondent pinned JM against a wardrobe and said words to the effect “Come on how about it? You’re big enough now”. He was pulling at her clothing. She told him to “fuck off” and “get away” and that she did not need his money. Two of the sisters witnessed the incident.

JM said that she had been told by her sister, SM, that the respondent had pinned her (i.e. JM) to a bed in the family holiday home at Malua Bay and that SM had told the respondent to get off JM. JM could not remember that incident herself.

JM first complained about the behaviour towards her by the respondent to her mother on Christmas Day in 1996. She did not make any statement to the police until May 2012.

JM recalled the respondent making inappropriate comments about women’s breasts in the presence of her and her sisters. He would tell them what she considered to be inappropriate jokes of a sexual nature and ask questions about their developing bodies and he would talk to them about boys. She thought the jokes were inappropriate but that was his way of being friendly to his nieces.

CM (a complainant – counts 1 and 2) said that when she was approximately seven years of age (around 1974) she would go to the respondent’s farm and he would take her and her sisters driving in his Land Cruiser. The respondent would let her steer the ute while she was sitting on his lap and he would run his hands up and down the inside of her leg. He would slide his hand up her inner thigh. It made her feel uncomfortable.

When CM was approximately 11 years of age in 1977, she was in the lounge-room of the respondent’s home. Her three sisters were present. The respondent’s wife was in the kitchen washing up. The respondent had showered and came into the lounge-room wrapped in a towel. He removed the towel and tucked his penis between his legs and said to the girls “Look at me. Don’t I look like a girl?” he then left the room. The sisters did not discuss the incident. CM was shocked at the respondent’s behaviour.

Approximately a year later, around 1978, CM and her sisters were at the respondent’s property. She was riding a motorbike and the respondent asked her for a lift to the shed. The respondent sat behind her on the motorbike as she rode to the shed. The respondent got off, retrieved what he came to get, and got on the back of the bike. As CM was about to start the bike, the respondent put his hands around her waist and put a hand down the front of her pants. He put his hand inside her underwear and penetrated her vagina with his finger. He stopped after about 30 seconds. CM started the bike and rode back to the paddock.

Approximately a year later, when she was in year 7 when she was aged around 12, the respondent asked her for a lift on the motorbike. He sat behind her and asked “Do you have hair down there yet?” She answered “Yes”. CM dropped the respondent off and left.

On Christmas Day 1996 CM was at home with her husband and children. Her mother, father and sister JM were visiting. She overheard a conversation between her mother and JM about the respondent touching JM. She was asked by her mother if the respondent had touched her and she replied in the affirmative. The following day she informed her husband who had been a police officer.

In 1998 CM’s grandmother (the respondent’s mother) died. At that time the family became aware of allegations made by JC and another woman LL that they had been assaulted by the respondent. CM was aware that the respondent had been physically assaulted in 2000.

In around 2005 JC visited CM at her home in West Wyalong and they sat and talked. CM said that they did not go into detail but the conversation was such that CM knew that the respondent had touched JC inappropriately. They discussed confronting the respondent but were not strong enough to do so at that time.

In 2009 CM sought counselling. On 5 May 2010 she went to the Wagga Wagga Police to make a statement. On 24 August 2010 she made a statement at West Wyalong Police Station. CM gave evidence in the committal hearing in April 2014.

In her evidence at the committal proceedings, CM said that she had spoken to her husband about the allegations but did not go into details. She said “No-one knows what he actually did to me” except what is contained in her police statement. She said that she had not spoken to anyone else, other than her husband. She said that she and her sisters had spoken about things that the respondent did in front of them, but none of them had ever spoken about things which he did to them individually. She had spoken to her sisters individually on a number of occasions over a number of years. They spoke about what he “used to do to us” when they were in the ute at the same time.

CM said that she and JC had spoken to each other but neither went into detail. CM said that she said to JC “I don’t want to know what he did to you”.

SM (a complainant – count 3) could recall incidents occurring in about 1978 when she was aged 9 involving the respondent. She could recall when she and her twin sister, HM, stayed with the respondent and his wife, that the respondent would come into the lounge room naked, he would tuck his penis between his legs and say “Look at me, I’m a girl”. He would do a little dance and turn his back and she could see his penis and testicles visible between his legs.

SM could recall the respondent coming into the laundry while she was in the shower, looking at her through the shower screen. She could recall the respondent running his hand up her legs to her genital area in a tickling motion while they were in the car.

When she was about 12 in 1981, she could recall sitting with her legs either side of the gearstick travelling into town with the respondent in his vehicle. The respondent ran his hand up to her genital region. She pushed his hand away and said “Don’t do that” and the respondent replied with words to the effect “Teenage boys will do that to you”.

SM could recall the respondent asking if she had pubic hair or if she had a boyfriend. She could recall an occasion when the family were on holidays in Malua Bay when the respondent came into the girls’ bedroom and lay on her sister JM, groping at her breasts and genitals.

SM said that in 2009 after her sister CM had attempted to commit suicide, she made contact with the respondent and his wife. She rang and confronted him on the phone saying “I’m going to ring the police. You are going to go to gaol for what you did”. She said that the respondent replied “Go ahead. It would be her word against mine and you couldn’t prove anything”. SM demanded that he put his wife on the phone but he refused to do so.

After several phone calls, CM spoke with the respondent’s wife. She had a conversation with her and that was the last time they spoke.

In SM’s statement of 4 November 2012 she said:

SM could also recall a day when JM told her that it had happened to her as well, but she did not ask her sister to go into any detail as she did not want to know.

SM denied having a number of conversations with her sisters about the allegations against the respondent. She said that CM had told her what had happened and on another occasion, her sister JM had attempted to discuss matters with her but she cut her short. She said that she only had one discussion with CM about what happened. SM said that she never spoke with her mother about what occurred to her and that she did not intend to, nor had she had any discussion with her twin sister HM about the matter. She said that she did have “words” with her twin sister when she found out that HM had travelled to Albury to see the respondent and his wife following an assault upon him in 2000.

SM said that when she said in the committal proceedings that she had not been sexually abused by the respondent she meant “penetrated”. At the time she first spoke with police, she was aware that her sister CM was going to make a statement to the police. SM said that she did not go to police earlier because she did not wish to hurt her aunt but once her aunt showed a lack of care about what the respondent had done to her and her sisters, she felt that her aunt was as bad as the respondent.

HM (a tendency witness) was the twin sister of SM. She said that she was aged 11 when the family moved to Wagga Wagga.

HM recalled an occasion when she and her sisters were in the respondent’s lounge-room and he entered the room naked with his penis tucked between his legs and said “Look I’m a girl”. She could recall regular occasions while in the car with the respondent that he would touch her on the leg and run his hand up the inside of her leg towards her crotch. She would push his hand away and remonstrate with him.

In April 1981 her parents went on holidays. The respondent and his wife came to care for the sisters in the family home in Wagga Wagga. She could recall seeing the respondent pin her sister JM against a wall in the rumpus room and grope her and say words to the effect “How about it J?”. HM said that she tried to stop him and push him away from her sister. The respondent and his wife left the premises shortly thereafter.

She recalled her mother RM asking her on her 27th birthday (1997) whether the respondent had ever done anything to her. She made a statement to police on 20 October 2012. She also gave evidence in the committal proceedings.

HM said that on the day of her 27th birthday when her mother asked her if the respondent had ever done anything to her, she said “no”. She said that her sister SM was present at the time. She said that she had never discussed the allegations with her sisters. There had been a discussion about court dates, but not details. She could, however, recall asking her sister CM to speak to the respondent to stop him going to her house. She remembered that she was pregnant at the time.

In her statement of 20 October 2012 HM said that even with her twin sister SM she never really spoke about the things that the respondent had done to us “like rubbing our legs in the car”. She could not recall the respondent touching her in a sexual way like her breast or genital area. She said that she had never gone into any details with her sisters about the respondent. She knew that he had done things to the others, especially JM and CM. She knew that they would tell her what happened, but she did not think she could cope with it if they did tell her.

JC (a complainant – counts 4 - 6) and her family moved into the property adjoining that of the respondent in 1983. She and her brother, GC, spent a lot of time at the respondent’s property riding motorbikes. They would often have dinner with the respondent and his wife. She could recall sitting at the dinner table when the respondent would try to touch her leg with his feet and legs. She could recall the respondent walking naked through the house after he had taken a shower.

When she was five or six, the respondent taught her to ride a quad bike. He would sit behind her and put his hands up her top and touch her on the breast. He would also put his hands into her pants and touch her vagina. He would take her out in the farm ute and teach her how to drive. She would sit on his knee and steer. He would change the gears and operate the pedals. He would put his hands down her top and touch her on the breasts. He would also touch her on the vagina before inserting a finger into her vagina.

As she got older, she went to the respondent’s farm less and less. She could recall him making comments about her breasts and vagina developing. She could recall feeling the respondent’s erect penis pressing into her back while they were riding the motorbike.

In 1993 or 1994, the respondent purchased a Harley Davidson motorbike. He took her for a ride. She sat behind him. He stopped the bike and touched her on the breasts before inserting a finger into her vagina. She asked him to stop as she was experiencing pain and they returned to the farm.

On another occasion when she was 11 or 12 she was riding a quad bike. The respondent was seated behind her. He told her to stop and she did so. He got off the bike and told her to lie down. She lay on the seat of the bike. He removed her shorts and underwear and performed cunnilingus. He invited her to touch him or lick him. She pushed him off. They returned home. She went home and took a long bath.

It was about six months before she returned to the respondent’s farm. On the next occasion, they were again on a motorbike. The respondent stopped the bike and inserted a finger in her vagina. She told him to stop, which he did, and they resumed riding the bike.

She first complained to her parents in about 1995, although nothing was formally reported. During the committal hearing, she said that she first raised what had occurred to her in response to an inquiry from her mother, who had been informed that the respondent had allegedly interfered with someone else. That someone else was LL.

JC’s parents apparently split up in around 1996. In 2000 the family sold the property adjoining that of the respondent and moved to Temora. JC said that she had spoken to others about what had happened to her. She had spoken to her father and her brothers and her mother. As the years went by, she had spoken with others and she had sought counselling. She was aware of rumours within the community about the respondent as long ago as 1999.

She said that one of the respondent’s nieces (CM) made contact with her and asked her if she was a victim. She thought that this was around 2003. She said that she went to West Wyalong and met up with CM. She said that they talked about the allegations to an extent, but that she did not go into detail.

She had a conversation with her ex-boyfriend DB and she was aware that he had seriously assaulted the respondent.

RM was the mother of the four sisters. RM said that it was Christmas in 1996 when JM told her that the respondent had been touching her from the time she was little until the early 1980’s. She could recall her other daughter, CM, walking in and from the look on her face, RM said she was aware that she had also been a victim.

RM said that while she did not discuss details with either daughter “Over the years things came out about what had happened”. She said that when she spoke to the twins on their birthday in January 1997, they both denied anything had occurred involving them. She subsequently learned that they chose not to make any disclosure that day because it was their birthday.

RM said that in 1998 at her mother-in-law’s funeral, she spoke to a sister-in-law, EM, and advised her to keep her grandchildren away from the respondent. When asked why, she informed her sister-in-law that the respondent had assaulted her daughters. She heard that EM had spoken to others who also disclosed there had been other victims.

She could recall the incident referred to by her daughters that occurred to JM in the house in Wagga Wagga when the respondent and his wife left early before she and her husband had returned from a trip to Melbourne. It was the recollection of RM that the respondent’s explanation for the early departure was that a disagreement had occurred between CM and his wife. RM said that she could not understand why such a disagreement would have occurred, but subsequently learned of the incident involving JM.

RM said that CM had informed her of a comment made by the respondent when he rubbed his hand over her upper leg to the effect “This is what boys are going to do to you when they take you out”. She was aware of the dislike of the respondent by her daughters, but they had not gone into the reasons why.

RM was extensively cross-examined in the committal proceedings. She said that she was close to her daughters. Before the disclosures about the respondent she had been ambivalent towards him and her husband did not trust the respondent. There was friction between the two of them. RM said that it was her daughter who first broached the subject of the respondent at Christmas 1996 saying to her “Mum, I’ve got something terrible to tell you. I want to tell you about Uncle G”. She said that she asked her daughters about the Melbourne weekend and why their uncle and aunt had left early and she was informed that there had been an incident between JM and the respondent. RM said that she did not push her daughters for details but encouraged them to talk to their husbands and partners.

She confirmed that she then spoke to the twins, who initially said that they had not experienced anything at the hands of the respondent. This was because it was their birthday and they did not want to discuss it on that day. RM said that she soon found out that it was otherwise. She learned about SM first but could not be precise as to when that occurred.

RM became aware of the respondent putting his penis between his legs and dancing around in front of them saying “Do you think I look like a girl”. It was something which she discussed with her daughters. RM said that she had no discussion with any of her daughters about things which were alleged to have occurred in the Land Cruiser or the ute, other than one of the girls had told her that the respondent had rubbed his hand up and down her leg and said “This is what boys are going to do to you when you grow older”. She thought it was CM who had told her that.

RM recalled another occasion, a family wedding, but she was not sure about the year. It was after her mother-in-law’s funeral. On this occasion, she requested that she and her husband not be seated with the respondent and his wife at the wedding.

RM was aware that the respondent had been assaulted in 2000 and she had her suspicions as to why. She did have a discussion with her daughters about the motive for the assault. She was aware that CM had gone to the police and that she would be contacted about making a statement.

RB was the mother of JC. She and her former husband had four children, including JC. She was aware that two of her children, GC and JC, became friendly with the respondent and his wife. She could recall an occasion when those two children had been with the respondent and they returned home. JC ran a bath and remained in the bath for a long time, which she felt was unusual for her.

She was aware of the respondent purchasing a new Harley Davidson motorbike. In 1997 she became aware of allegations that the respondent had been abusing CM. She had met up with LL and LL had told her that she too had been abused by the respondent.

When she heard that, RB became concerned for her own daughter and spoke to her asking her whether GM had done anything to her. JC replied “yes”. JC told her that the respondent “Didn’t actually have sex with her” but that he used to touch her. JC did not want anyone to know. The family did end up finding out when JC’s boyfriend assaulted the respondent because one of her sons, GC, was present at the time of the assault.

Her Honour summarised the thrust of the respondent’s submissions as follows:

Her Honour then set out ss 97 and 101 of the Evidence Act 1995 (NSW) (the Act). By reference to those sections, her Honour noted that the court was required to embark on two inquiries:

Her Honour went on to further analyse those requirements as follows:

Her Honour then sought to analyse the position at common law, but in doing so, focused on s 101 of the Act rather than s 97. Her Honour said:

Having set out those statements of principle, her Honour briefly summarised the way in which the Crown sought to rely upon the tendency evidence and concluded:

Her Honour then had no further regard to s 97, but focused on s 101 of the Act as follows:

By reference to the evidence, her Honour set out her conclusions as follows:

As a starting point it is necessary to keep the provisions of sections 97 and 101 clearly in mind. These provisions have changed what was traditionally the common law approach to questions of tendency evidence and the effect on it of the risk of concoction and contamination.

Under the Dictionary to the Act, “probative value” is defined:

The most comprehensive statement by this Court of the law in relation to these sections and their interaction is in Hughes v R [2015] NSWCCA 330 at [158] – [204]. In reviewing that case law, the court (Beazley P, Schmidt and Button JJ) said:

A question then arises as to where in that process of reasoning consideration should be given to evidence of a risk of concoction or contamination and when that is determined, how that evidence should be treated.

Again, guidance is provided by recent case law. While these cases set out relevant principle, each was dependent largely on its particular facts.

The first step in that process is to consider some of the observations in DSJ v R; NS v R [2012] NSWCCA 9 (Bathurst CJ, Allsop P, Whealy JA, McCellan CJ at CL and McCallum J). There Bathurst CJ said:

Although those statements of principle were concerned with s 98, it has been acknowledged on a number of occasions that the same principles apply equally to s 97 of the Act (JG v R [2014] NSWCCA 138 at [105] (per Simpson J with whom Hall and Schmidt JJ agreed)).

The issue of where in the process of reasoning the risk of concoction and contamination should be considered was dealt with directly in Jones v R [2014] NSWCCA 280 where Bellew J (Gleeson JA and Schmidt J agreeing) said:

The same issue was considered by the Court in DJW v R [2015] NSWCCA 164 where R A Hulme J (with whom Simpson and Bellew JJ agreed) said:

The issue arose again in McIntosh v R [2015] NSWCCA 184 where Basten JA (with whom Hidden and Wilson JJ agreed) said:

The most recent statement of principle in relation to the “possibility of contamination or concoction” is in Hughes v R:

On 14 April 2016 the High Court by a majority (French CJ, Kiefel, Bell and Keane JJ) gave judgment in IMM v The Queen [2016] HCA 14. The effect of that judgment was to uphold the interpretation of s 97 of the Act in R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228. In that regard the plurality said:

Unfortunately in the context of this case, there was no occasion for the plurality to consider the application of s 101. Some guidance, albeit slight, can be taken from the following observations:

No issue was raised as to the application of ss 5F(2) and 5F(3A) of the Criminal Appeal Act 1912. Quite clearly, the ruling by her Honour would significantly weaken the Crown case. The contrary was not submitted. It is also clear that her Honour’s decision to sever the hearing of the counts on the indictment flowed directly from her Honour’s refusal to allow the Crown to rely upon the tendency evidence. The issue here is not the Crown’s power to bring the appeal but whether it has established that the appeal should succeed.

I have concluded that there are a number of errors in her Honour’s approach to the admissibility of the tendency evidence, such as would require the intervention of this Court. In that regard, it should be noted that no challenge was made in this Court to the contents of the tendency notice. It should also be noted that the material before her Honour comprised statements and a transcript of the evidence given in earlier committal proceedings so that when considering the evidence, this Court was in as good a position as her Honour.

As was pointed out in Hughes v R there is an issue as to whether the possibility of concoction or contamination is a relevant consideration in determining whether evidence has significant probative value. In BJS v Regina [2011] NSWCCA 239 and in Jones v R and DJW v R this was a consideration in determining significant probative value under s 97. The observations of Basten JA in McIntosh v R, however, suggest otherwise.

If (which I believe is correct) the possibility of concoction or contamination where it arises in evidence, is a relevant consideration when determining whether evidence has significant probative value under s 97, her Honour was in error in not taking that matter into account when considering whether the tendency evidence had significant probative value. Moreover, as was pointed out in DJW v R by RA Hulme J, the process followed by her Honour of determining the issue of concoction or contamination quite separately from the issue of whether the tendency evidence had significant probative value gave rise to an approach which was more akin to that in Hoch v The Queen. There RA Hulme J said:

Another error in her Honour’s judgment was her approach to s 101 of the Act in which she implicitly, if not expressly, applied the Hoch test and a “no rational view” test when considering the possibility of concoction or contamination. The error in this approach was made clear by the plurality in IMM v The Queen at [59] (see [96] hereof).

At 19 her Honour said:

Such an approach was specifically disapproved in McIntosh where Basten JA said:

Her Honour’s reasoning on this issue appears to have relied upon cases which predated Regina v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [94] – [96]. Her Honour was clearly in error in adopting the Hoch approach as applied in BP v R; R v BP, (BJS v Regina per Basten JA at [24], [26], RS Hulme J at [42]; Jones v R at [75]). It follows that her Honour applied the incorrect test for the admission of tendency evidence under the Act.

Her Honour also erred in making assessments of credibility and reliability when determining the admissibility of the tendency evidence. This is clear from IMM v The Queen at [52]. Statements of principle to this effect are set out in DSJ v R. When carrying out that exercise “it is no part of the court’s task to engage in a fact finding exercise to determine the reliability or credibility of the evidence or to form a view one way or the other whether the jury would in fact find the evidence to be of significant probative value (Bathurst CJ at [9] and “It is his or her [the judge] task to assess the capacity of the evidence in the manner described by Whealy JA, not to assess what a jury will do” (Allsop P at [11]).

This is clearly what her Honour did when concluding that:

In making those findings which were pivotal to her Honour’s conclusion that the tendency evidence should be rejected, her Honour did precisely that which the case law enjoined her not to do, i.e. she made an assessment of the credibility and reliability of the evidence of the witnesses. As was made clear in Jones v R at [88]:

The above errors are such that her Honour’s conclusion that the tendency evidence should not be admitted cannot stand. That, of course, does not end the matter. It is necessary for this Court to examine the evidence, apply the correct test and reach its own conclusion.

The question of what is the correct test under s 101 is not without difficulty. The concluding sentence in the observation from Jones v R just set out provides some guidance. This was clarified in DJW v R where RA Hulme J said:

In McIntosh Basten JA postulated the test somewhat differently:

Does the evidence in this matter amount to a real risk of contamination or concoction so as to give rise to a competing inference sufficient to deprive the tendency evidence of significant probative value. Put another way, is there a competing inference to be drawn from the evidence such as to render the tendency evidence inherently implausible. In carrying out that evaluative exercise, questions of credibility, reliability and weight should be disregarded.

There is no doubt that the two sister complainants and the two sister tendency witnesses spoke to each other about various aspects of their interaction with the respondent. Consistently, however, they denied speaking to each other as a group. Such discussions as they had, occurred on an individual basis. The exception to that was the evidence of the sisters that they had spoken about things that the respondent did in front of them but “none of us have ever spoken about the things that he did to us”. This was a reference to occasions when all four sisters were present, i.e. the penis between the legs occasions and the touching in the farm ute. The cross-examination at the committal hearing was of a general kind and did not extend to a testing of what was actually said in any of those one-on-one conversations between the sisters.

JC only spoke to one of the sisters, CM. That conversation occurred when JC had visited CM at her home at West Wyalong. Both JC and CM denied that they had exchanged any detail about what the respondent had done to them. When one looks at their statements and evidence, that is clearly correct. The evidence of JC is quantitatively and qualitatively different to that of CM. The offences against JC are different and more serious. Their evidence to the effect that they did not feel strong enough to go to the police, does not indicate that they were talking about the detail of what the respondent had done to them, but rather what (if anything) they should do about it. It should be noted that JC did not speak to any of the other sisters.

The reliability and credit findings made by her Honour were contrary to the evidence of the sisters and JC and would clearly be contested issues in any trial. In those circumstances, I do not see how it could be said on the material before her Honour, that there was an inherent implausibility in what those witnesses said at the committal. I do not see how the evidence of the sisters and JC could give rise to a competing inference sufficient to deprive their evidence as to tendency of its significant probative value.

To the extent that the common law factors of relationship, opportunity and motive remain relevant, they do not give rise to any inherent implausibility or powerful competing inference in this matter. Just because four of the tendency witnesses are sisters and as such had the opportunity of discussing these matters with each other, is not enough. This is particularly so when they have denied any detailed discussions as to what the respondent did to each of them and they were not cross-examined as to the detail of those conversations. The evidence of motive is thin and does not apply to JC. In any event the accusations against the respondent had been made well before 2009 when CM made her suicide attempt.

I have particular difficulty with her Honour’s finding that “All the various witnesses denied discussing details yet their evidence does contain material which is remarkably similar as to unusual detail of which those who were not present could not have known about unless the matter had been the subject of discussion at some length”. The only unusual detail which I can identify is the respondent’s conduct after a shower of positioning his penis behind his legs. Since the evidence of all of the sisters is that they were present together on at least one occasion when this occurred and that it was a regular occurrence, it is not surprising that the description of what the respondent did in that regard was similar. That criticism could not apply to JC.

Her Honour’s finding (at 24.1) that if the tendency evidence were allowed to be given, the respondent’s capacity to properly defend himself might be impeded because evidence might emerge of the rumours which were extant in the local community, does not withstand scrutiny. The rumours to which reference was made in the evidence related to the four sisters and JC. This was particularly so in relation to the physical assault by JC’s former boyfriend on the respondent. It is difficult to see how the respondent would be unfairly disadvantaged in that circumstance since these were the very matters which he was required to meet in the Crown case. There is no suggestion anywhere in the evidence that there were any rumours concerning LL, which is not surprising since the alleged offences against her occurred well before these offences.

If anything, the evidence suggested that contamination and concoction were unlikely. This can be inferred from the evidence of JM that her sister SM had told her about an incident with the respondent which occurred at the holiday home at Malua Bay. Despite SM having told her about it, JM was still unable to remember the incident and did not say or suggest that she had in some fashion recovered that memory. This is the very antithesis of concoction and contamination.

In the course of the hearing in this Court, Hall J put forward a scenario which is to be contrasted with the evidence in this matter and which could give rise to inherent implausibility or a competing scenario which might substantially erode the significant probative value of any tendency evidence (Appeal transcript 5.33). The scenario put forward by Hall J was that of an allegation of sexual misconduct by a former teacher against a group of former pupils. In that scenario the former pupils, now adults, formed a victims’ group and used to meet on a regular basis to discuss what had happened to each of them with this teacher.

In such a scenario there would be no issue as to the occurrence of the meetings, or as to what was discussed at the meetings. Depending on the level of detail discussed and the actual evidence, that may well be a scenario where a denial of contamination would be regarded as inherently implausible or where the very facts themselves might give rise to a competing inference which would substantially erode the significant probative value of any tendency evidence. The contrast between that scenario and the issues raised in this matter is stark.

On my reading of the evidence of the four sisters and JC I am satisfied, for the purposes of s 97 and s 101 of the Act, that it has significant probative value. I am satisfied that significant probative value has not been eroded by inherent implausibility nor is there a competing inference sufficient to deprive the tendency evidence of its significant probative value. There is certainly material in the evidence which would enable cross-examination at trial as to the possibility of contamination or concoction. Those, however, are matters for the jury not for a trial judge ruling as to the admissibility of evidence at the commencement of the trial. This is particularly so when such a ruling of necessity would involve the making of findings as to the credibility and reliability of that evidence.

Section 101(2) of the Act provides that tendency evidence cannot be used against a defendant in a criminal trial unless its probative value substantially outweighs its prejudicial effect on the defendant. In carrying out that balancing exercise, I am satisfied that the probative value of the tendency evidence does substantially outweigh any prejudicial effect on the respondent. Just because four of the tendency witnesses are sisters, had the opportunity to talk about the actions of the respondent and did in fact talk about them, does not create unfairness of the type envisaged by the section. This is particularly so when that evidence can be tested at trial.

It also needs to be kept in mind when considering s 101 that in a case such as this clear directions by the trial judge would substantially remove any potential unfairness. The factual scenario in this trial is relatively straightforward and such directions as would be required to be made by the trial judge would not be complex and would be readily understood by the jury.

It has long been recognised that appropriate trial directions need to be provided so that a jury is properly instructed in the evaluation required of evidence in the nature of tendency evidence where it is contended at trial that the evidence is affected by contamination. This issue was addressed in The Queen v Glennon (No 2) [2001] VSCA 17. Although the court was there addressing the concept of similar fact evidence, the observations are of equal importance in relation to a Crown case in which tendency evidence is relied upon. In Glennon, Callaway JA (with whose reasons Winneke P and Ormiston JA agreed) observed:

Although in that case the question of unconscious influence or contamination was argued on the basis of media publicity, the approach to be taken with respect to jury directions applies equally to a case of contamination arising in other circumstances. Callaway JA in Glennon (No 2), referred to the following observations from R v Best [1998] 102 A Crim R 56 at [64] per Callaway JA (with whom Phillips CJ agreed):

The orders which I propose are:

HALL J: I agree with Hoeben CJ at CL.

BUTTON J: I agree with the judgment of Hoeben CJ at CL.

As for his Honour’s discussion of the role of asserted concoction or contamination in assessing probative value with regard to tendency or coincidence evidence, I have reflected upon whether the decision in IMM v The Queen [2016] HCA 14 supersedes the jurisprudence that has developed in this Court since the handing down of the judgments in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 in 2006 and R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 in 2013.

On the one hand, if it is now clear that trial judges are not to engage in an assessment of credibility or reliability in assessing probative value, that could suggest that there is no role for consideration of alternative inferences about asserted concoction or contamination. That is because it could be said that the possibility of concoction is merely an aspect of credibility, and the possibility of contamination is merely an aspect of reliability.

On the other hand, the plurality in the High Court of Australia did not expressly disapprove the analysis that has been provided by this Court over the last 10 years. To the contrary, by way of footnote 45 within [59] of the plurality judgment, their Honours referred with approval to what had been said by Basten JA (with the agreement of Hidden and Wilson JJ on this point) in one of the most significant of those cases, McIntosh v R [2015] NSWCCA 184 at [42]-[48], and did not demur from what his Honour said in the rest of that judgment.

As well as that, the plurality expressly reserved the question of the role, if any, that asserted concoction could play with regard to the test contained in s 101 of the Act: at [59].

Finally, the plurality spoke of the possibility of evidence, even when taken at its highest, possessing low probative value (the “identification on a foggy night” example): at [50]. That approach seemingly admits of taking into account, at least, factors that go to the reliability of evidence.

In the circumstances, unless and until the High Court speaks more determinatively and adversely with regard to the jurisprudence developed by this Court, I am content to regard it as remaining applicable to the task of trial judges.