O’Callaghan v R

1. [1]

   LEEMING JA: The applicant, Mr Nicholas Francis O’Callaghan, seeks leave to appeal from the interlocutory decision of the primary judge refusing to make orders severing a joint indictment and ruling that the Crown could adduce tendency evidence in the trial. No application was made before the primary judge for certification that his judgment was a proper one for determination on appeal, pursuant to s 5F(3)(b) of the Criminal Appeal Act 1912 (NSW), and so leave is required.

2. [2]

   The trial is fixed for hearing commencing on 1 August 2016, and the applicant accepts that if he succeeds in this appeal, that trial will still proceed, although only on a single count.

3. [3]

   The candid and constructive approach adopted by counsel for the Crown, in both her written and oral submissions, has significantly assisted in the resolution of this appeal.

Factual background

1. [4]

   By indictment dated 27 March 2015, the applicant was charged with one count of sexual intercourse with SF without her consent, knowing she was not consenting and was under the age of 16 years, namely 14 years, and one charge of committing an act of indecency towards KJ, a person under the age of 16 years, namely 11 years. Having regard to the nature of the offences, the two complainants, who are now young women, cannot be identified: Crimes Act 1900 (NSW), s 578A.

2. [5]

   The applicant has pleaded not guilty to both counts.

3. [6]

   A notice pursuant to s 97 of the Evidence Act 1995 (NSW) dated 29 September 2015 dealt with particular paragraphs of statements made by SF and KJ and KJ’s friend RR. It also dealt with two other matters as to which the primary judge dismissed the Crown’s application, and from which there is no appeal. It is not necessary to say anything more about them, save that they were described at first instance as “the 2013 matters”.

4. [7]

   The only order made by the primary judge was as follows:

5. [8]

   It is well settled that this Court will generally not grant leave to appeal from decisions relating to the admissibility of evidence: see the decisions collected in DAO v The Queen [2011] NSWCCA 63; 81 NSWLR 568 at [74]. More generally, leave should not be granted unless an appropriate case is made out showing error of principle which is apt to cause an irregularity or injustice: see DSJ v R; NS v R [2014] NSWCCA 77 at [6] and BC v R [2015] NSWCCA 327 at [90]. That said, it is necessary to consider the application for leave at the level of substance, rather than form.

6. [9]

   Notwithstanding the form of the order made by the primary judge, the underlying issue was whether the indictment should be severed. The Crown and the applicant proceeded on the basis that the applicant’s application to sever would succeed if and only if the applicant’s objection to the Crown relying on the evidence relating to each count as tendency evidence in relation to the other count were upheld. Thus the order goes directly to the heart of the trial which is to take place. The Crown acknowledged that this was a case where an appeal pursuant to s 5F(3) was available.

7. [10]

   As is plain from the nature of the charges, the evidence of the two complainants was quite different. They may be summarised as follows (which is taken very substantially from the applicant’s written submissions, of which the Crown made no complaint).

Count 1

1. [11]

   SF met the applicant in 1998 or 1999 when he stopped and offered her a lift as she was walking along Pacific Drive, Port Macquarie, near Town Beach. At the time the applicant was driving a red station wagon. The applicant stopped his car next to her and said something like, “Hi I’m Nick. Do you wanna come and have a smoke?” SF believed what was being offered was marijuana, and she got into the car. In her statement of 10 July 2013, she said that this happened shortly after her 14th birthday.

2. [12]

   During the drive the applicant said to SF, “I’m in advertising. I could get you a job in modelling.” She told him she wasn’t interested. He drove to his home, and provided SF with beer and marijuana, which they consumed together. After this she became a regular visitor to the applicant’s home. On occasions she would attend the house with her friend JN. Generally during the visits alcohol and marijuana would be consumed.

3. [13]

   On about the 10th visit to the applicant’s home, SF attended with her friend JN. JN and SF brought marijuana with them to the house to share with the applicant. The three of them then drank alcohol and smoked the marijuana. At some point JN left. A short time after this SF became ill. She went to the bathroom and threw up, and then the applicant suggested to SF, “go into my room and lay down”. She fell asleep on his bed.

4. [14]

   When she awoke she saw the applicant on top of her. Her underwear was pulled down and her skirt was pulled up. The applicant was naked, and was touching SF. At some point he placed a condom on his penis, then inserted his penis in her vagina. After he finished having sex with her SF dressed and left. The only person she told of the incident was her friend JN, when she said to her, “[The applicant] is a sleaze, he touched me when we were sitting on the lounge.”

5. [15]

   Some days later SF and JN returned to the applicant’s house. SF says this was done in order to steal money as “payback”. After drinking alcohol and smoking marijuana SF attempted to steal money from the applicant’s wallet, but was caught. Both parties made threats to contact police. SF never returned to the applicant’s house. She reported the matter to police in 2013.

Count 2

1. [16]

   In approximately January 2003 the complainant, KJ, then aged 11, was returning home from Flynns Beach with her friend RR. KJ parted company with her friend near the Flynns Beach shops on Pacific Drive Port Macquarie, and crossed the road at the pedestrian crossing. As she did so she noticed a red station wagon parked nearby, and saw there was a man sitting in the car. KJ entered a shop to buy some lollies. When she exited the shop and turned to go home, she noticed the red station wagon pull alongside her. The sole male occupant was looking at her and smiling. KJ turned left into Flynns Street (in the direction of her home) and the car followed behind her around the corner, driving slowly.

2. [17]

   KJ was scared and ran into a nearby caravan park, hoping to hide from the man in the car. After a short while KJ thought the car had left so she walked quickly out of the caravan park and across the street towards home, on Surf Street. As she turned into Surf Street the same red station wagon pulled alongside her. The driver leant across the passenger seat and opened the front passenger door. KJ could see that the man had his seat belt off, and had pulled his penis out of his shorts and was stroking it. He said to KJ, “Hey darling, your mum asked me to pick you up.” When she refused, the man said, “Come on darling just hop in.”

3. [18]

   KJ looked around and saw a couple out the front of the caravan park. She ran towards them in fear and sought assistance. The red car then drove away up Surf Street. The couple drove KJ home to her mother. When she arrived home she was crying and she told her mother that a man had tried to get her into his car. At this time she did not tell her mother that the man was touching his penis, “... as I was only 12 years old and embarrassed and didn’t know how to tell someone this.”

4. [19]

   The police were summoned and a description of the man and vehicle was provided to police.

5. [20]

   KJ saw the car again several times over the next few months in the area of Flynns Beach and the Flynns Beach shops. On one occasion the car drove past KJ and her friend RR as they walked home from school. The car slowed down next to the two girls. They ran off, back to KJ’s home.

6. [21]

   Some weeks after the incident, as KJ was driving with her mother along Pacific Drive, she saw the male who had approached her standing on the roadway outside a house. The red station wagon was parked close by. KJ pointed the man out to her mother.

7. [22]

   The next day KJ returned to the same house with an older friend, her older brother’s girlfriend. The red station wagon was parked out the front of the house. The friend wrote down the registration number of the car, and that was later provided to police. That registration number was matched by police through RTA records as belonging to a red Toyota Camry Station Wagon, which was registered to the applicant at the relevant time.

8. [23]

   Corroborative evidence by a friend of KJ was also sought to be relied on. It will not be necessary for present purposes to summarise that statement.

Relevant provisions of the Evidence Act

1. [24]

   The admissibility of the tendency evidence is relevantly governed by the following sections of the Evidence Act 1995 (NSW):

2. [25]

   In a joint indictment, plainly enough the evidence of each of SF and KJ will be relevant. The evidence of SF will be relevant to count 1 and that of KJ to count 2. Hence the force of the prohibition in s 95(2) upon the use of their evidence contrary to the tendency rule in relation to the other count.

3. [26]

   In order to displace the prohibition in s 95(2) upon the use of evidence, the issues which arise from ss 97, 101 and 137 are:

   1. (1)

      whether the use of the evidence as tendency evidence will have significant probative value; and

   2. (2)

      whether the probative value substantially outweighs any prejudicial effect; and

   3. (3)

      whether the probative value is outweighed by the danger of unfair prejudice.

The tendency notice

1. [27]

   The Crown indicated an intention to adduce tendency evidence by notice dated 29 September 2015. No point was taken as to the delay in its service. The notice relevantly stated:

2. [28]

   It may be seen immediately that some aspects of the notice were incapable of applying to both complainants’ evidence. For example, there was no suggestion that offering opportunities to drink alcohol or smoke marijuana or enticing young girls with the offer of assisting them obtaining modelling work applied to the evidence of KJ or her friend. Very properly, the Crown acknowledged in its written submissions that “some of the matters identified as ‘tendencies’ in paragraph 3 of the Crown’s Tendency Notice do not have significant probative value”. I return to this when dealing with the reasons of the primary judge, which did not address this defect.

The reasons of the primary judge

1. [29]

   The primary judge’s reasons were delivered ex tempore, immediately following the conclusion of submissions. His Honour reproduced ss 55, 97, 101 and 137 of the Act, and many paragraphs of the complainants’ statements. His Honour then referred to authorities on significant probative value, and unfair prejudice, and in that context referred to authorities concerning the efficacy of jury directions. His Honour stated, correctly, that there was no longer any requirement that the conduct be strikingly similar.

2. [30]

   His Honour said:

3. [31]

   However, his Honour did not separately identify what those “common threads” and “similar threads” were.

4. [32]

   Nor did his Honour at that stage in his reasons make any assessment of probative value.

5. [33]

   His Honour then turned to the “2013 matters”, and rejected them on the basis of their prejudicial effect. It is not clear from the face of the reasons whether his Honour relied on 101 or 137, because his Honour did not expressly refer to either section, nor to the different tests in those sections.

6. [34]

   His Honour then returned to the matters relating to this appeal, and concluded:

Concessions by the parties

1. [35]

   The applicant proceeded on the basis that in order to succeed, he had to establish error in accordance with the principle in House v The King (1936) 55 CLR 499. It follows that it is not necessary to express a view whether error falling short of such error might suffice: cf Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528 at [58]-[59]. The gravamen of his submissions was that there was no identification of what the “common threads” and “similar threads” were, no analysis of what their probative value was, whether they had significant probative value, and if so, whether that value substantially outweighed the prejudicial effect.

2. [36]

   If error were established, then the applicant accepted that it would be appropriate for this Court itself to conduct the analysis required by the Act.

3. [37]

   The Crown candidly, and in my view properly, acknowledged that there were deficiencies in the reasons such that material error was shown. Counsel accepted that there was no express assessment of significant probative value, and no evaluation of whether it substantially outweighed prejudicial effect. On a fair reading of the reasons, the primary judge at no time applied the test in s 101(2). Instead, having expressed the conclusion that the probative value was “high”, his Honour proceeded directly to the balancing process in s 137.

4. [38]

   The approach of the primary judge reveals substantially the same errors Hoeben CJ at CL identified in Sokolowskyj at [51]-[52]:

5. [39]

   Not only did the primary judge in this case fail to identify the “common threads” and “similar threads”, but also there was no analysis of the prejudicial effect of the evidence. Further, the reasons disclose a failure to apply the statutory test of the probative value substantially outweighing the prejudicial effect.

6. [40]

   The consequence of the concessions by the Crown referred to above in [28] and [37] is that there must be a grant of leave and the appeal must be allowed at least in part. The Crown acknowledged as much.

7. [41]

   However, in her written submissions, counsel for the Crown put forward a narrower basis upon which a trial on both counts might proceed. This was done without opposition from the applicant, and accordingly nothing in this judgment should be taken to bear upon whether that course is appropriate and if so how it bears upon the considerations favouring a grant of leave (cf BC v R [2015] NSWCCA 327 at [92]). The Crown contended that:

8. [42]

   The reasoning supporting that approach was articulated as follows:

9. [43]

   Finally, the Crown acknowledged that the matter could not be put more highly than as reproduced above.

10. [44]

    Thus what was put forward by the Crown was that upon the redetermination of the question by this Court on a narrower basis, the decision to permit the Crown to rely on tendency evidence, and the refusal of the application to sever the indictment, could be maintained.

Consideration

1. [45]

   In any case of tendency evidence, there will be differences. Thus, taking the complainants’ evidence at its highest, the differences include that:

   1. (1)

      the offending with SF in 1998 or 1999 followed a series of meetings at the applicant’s house, at which alcohol and marijuana were consumed by the complainant, while the offending with KJ occurred spontaneously, in 2003, on the first day the applicant interacted with KJ;

   2. (2)

      at the time of the offending conduct, SF was aged 14 and KJ aged 11;

   3. (3)

      the nature of the offending conduct was non-consensual penile vaginal intercourse in the case of SF, and masturbating while sitting in his vehicle in sight of KJ in the case of KJ.

2. [46]

   Those differences were at the forefront of the applicant’s written and oral submissions. That said, there are also similarities insofar as the conduct took place in the same urban centre in regional New South Wales, and, importantly, in both cases commenced with an overture to a young girl made by the applicant from a red station wagon, and was followed by sexual misconduct involving a young girl. Plainly enough, in each case the conduct reflected a sexual interest in a young girl.

3. [47]

   However, as I endeavoured to say in El-Haddad v R [2015] NSWCCA 10; 88 NSWLR 93 at [74]-[75], the question turns on relevant similarities and dissimilarities, rather than a mere enumeration of the bare similarities and dissimilarities which may be discerned from the evidence. What is relevant requires regard to be had to the facts in issue. Only against a consideration of the issues may the probative value of the evidence be ascertained.

4. [48]

   In the present case, the primary judge proceeded on the basis that there would be a substantial contest whether either of the accounts of SF and KJ would be established. The principal questions which arose in relation to the tendency notice, therefore, were whether acceptance of KJ’s evidence had significant probative value in respect of the Crown case in relation to SF, and whether acceptance of SF’s evidence had significant probative value in respect of the Crown case in relation to KJ. As confirmed in IMM v The Queen [2016] HCA 14 at [50], those questions are to be answered on the basis that the jury will accept the evidence tendered at its highest.

5. [49]

   Let it be assumed that the jury accepted beyond reasonable doubt that the applicant had sexually assaulted SF in 1998 or 1999, having first approached her in his car and then struck up a relationship of a sort with her. As formulated by the Crown, it could be inferred that when the applicant first met SF, he had an intent in due course to engage in some sort of sexual activity. If so, then it might more readily be concluded that it was the applicant who approached KJ in his car in 2003 and committed an act of indecency.

6. [50]

   Accepting as I do that that mode of reasoning is available, in terms of the (low) threshold of relevance under s 55, it falls short of having significant probative value. The reason it does so lies not so much in the difference in age between the complainants, nor the difference in the quality of the offending conduct, but in the fact that there was a considerable gap in time between the initial encounter with SF and the eventual sexual assault.

7. [51]

   Another way of putting the matter is this. It would be quite different if KJ gave evidence that she had been enticed into the applicant’s vehicle, and that there had been a series of interactions between them before he committed a sexual act. But the immediacy of the indecent behaviour reported by KJ – displaying his penis before even telling her that her mother had asked him to pick her up – is so different from the overture to SF, that I would not conclude that SF’s evidence is significantly probative in relation to the count involving KJ.

8. [52]

   The same follows, in my view all the more clearly, in relation to the other mode of tendency reasoning upon which the Crown relied. Let it be assumed that the jury accepted beyond reasonable doubt that the applicant committed the act of indecency involving KJ. The appeal proceeded on the basis that there would not be an issue of identification in relation to SF. The only real issue on count 1 was whether the offending conduct occurred as described by SF. I do not accept that whether or not the applicant committed a spontaneous act of indecency involving KJ has a significant probative value on whether or not, after a series of interactions with SF gaining her trust, the applicant raped her.

9. [53]

   Thus neither mode of reasoning, as refined on appeal, satisfies the threshold of significant probative value. It is not necessary to express a view of the position if only one of the modes of tendency reasoning had significant probative value.

10. [54]

    Even if, contrary to my view, there was significant probative value in the tendency evidence, the evidence could only be used for a tendency purpose if that probative value substantially outweighed any prejudicial effect. For example, it is easy to see that evidence that a man had committed an act of indecency in front of an 11 year old girl would have a prejudicial effect upon the jury determining whether, five years earlier, he had raped another young girl, albeit in different circumstances. I am not persuaded that the Crown has shown that the probative value of the evidence substantially outweighed its prejudicial value.

11. [55]

    I am confirmed in the conclusions reached above by this Court’s decision in Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528, which bears considerable similarities. Mr Sokolowskyj was charged with touching the vagina of an 8 year old girl in the parents’ room of a shopping centre. The question was whether his convictions, years before, of indecent exposure to various young women, of whom one was 15 and another was 21, were admissible as tendency evidence.

12. [56]

    Hoeben CJ at CL, with whose reasons Adams and Hall JJ agreed, made the following apposite observations.

13. [57]

    First, his Honour said that there was a difficulty by reason of:

14. [58]

    It will be seen that the notice in the present case, even as refined on appeal, is expressed at a similarly high level of generality, the result of which is a reduction in probative value.

15. [59]

    Secondly, his Honour said at [41] and [43]:

16. [60]

    So too in the present case, it is difficult to see how an indecent exposure to an 11 year old girl the applicant had interacted with for the first time would have significant probative value in the issues raised on the count of sexual intercourse without consent. On one view the differences are even more stark than in Sokolowskyj, because not only is there the contrast between the exhibitionistic behaviour on the one hand and the non-consensual sexual intercourse on the other, but also there is the fact that one complainant was a complete stranger, while the other had been befriended over a number of occasions.

17. [61]

    Thirdly, Hoeben CJ at CL said in Sokolowskyj at [56]-[57]:

18. [62]

    Once again, substantially the same approach applies here. The probative value of each of the evidence of SF and KJ in relation to the other count was not high. Even if the evidence had significant probative value, it is plain that the prejudicial effect was considerable, and outweighed such probative value as the evidence had. Certainly, the probative value did not substantially outweigh the prejudicial effect.

19. [63]

    The Crown pointed to passages in BC v R [2015] NSWCCA 327 at [78]-[81] in which Sokolowskyj was distinguished. However, it is clear that Beech-Jones J, with whom Simpson J agreed, was not suggesting that Sokolwskyj was wrongly decided. To the contrary, Beech-Jones J at [81] confirmed its correctness.

Conclusion and orders

1. [64]

   It follows from the Crown’s concessions, which in my view were properly made, that there should be a grant of leave and that the reasons of the primary judge disclose material error. Even as reformulated, the narrower tendency reasoning advanced by the Crown is not permissible.

2. [65]

   For those reasons, I propose the following orders:

   1. (1)

      Extend time within which to seek leave to appeal.

   2. (2)

      Grant leave to appeal and allow the appeal.

   3. (3)

      Set aside the order made on 13 October 2015 that the tendency evidence may be adduced with the exception of 2013 matters.

   4. (4)

      Order that the indictment dated 27 March 2015 be severed.

3. [66]

   The consequence is that it will be for the Crown to advise the applicant which of the counts contained in the indictment will go to trial on 1 August 2016.

4. [67]

   Finally, I note that another judge of the District Court made non-publication orders on 17 April 2015 which went well beyond what is required by s 578A of the Crimes Act 1900 (NSW). I am not expressing a view as to the appropriateness of those orders. However, the orders did not comply with s 8(2) of the Court Suppression and Non-publication Orders Act 2010 (NSW) which requires such an order to specify the grounds on which it is made. If and to the extent that those orders are maintained, that section should be complied with, as of course should the primary objective stated in s 6 of that Act, to safeguard the public interest in open justice.

5. [68]

   Both parties were content to proceed on the basis that if this judgment is not made publicly available until the resolution of the charges in the indictment, no further non-publication order would be required. That is the course that will be followed.

6. [69]

   R A HULME J: I agree with Leeming JA.

7. [70]

   R S HULME AJ: I agree with the orders proposed by Justice Leeming and with his Honour's reasons.