R v SG

1. [1]

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

2. [2]

   McCALLUM J: I agree with Bellew J.

3. [3]

   BELLEW J: On 4 May 2017, SG (“the respondent”) pleaded not guilty to an indictment containing the following counts:

   1. (1)

      On 23 December 2015, at Crows Nest in the State of New South Wales, did assault FG and at the time of assault did commit an act of indecency on FG.

   2. (2)

      On 23 December 2015, at Crows Nest in the State of New South Wales, did assault FG.

   3. (3)

      On 23 December 2015, at Crows Nest in the State of New South Wales, did have sexual intercourse with FG without her consent, knowing she was not consenting.

   4. (4)

      On 25 December 2015, at Crows Nest in the State of New South Wales, did assault FG.

   5. (5)

      On 28 December 2015, at Crows Nest in the State of New South Wales, did assault FG and at the time of such assault did commit an act of indecency on FG.

   6. (6)

      On 28 December 2015, at Crows Nest in the State of New South Wales, did assault FG.

   7. (7)

      On 29 December 2015, at Crows Nest in the State of New South Wales, did assault FG and at the time of such assault did commit an act of indecency on FG.

   8. (8)

      On 29 December 2015, at Crows Nest in the State of New South Wales, did assault FG.

4. [4]

   The offending alleged in counts 1, 5 and 7 was contrary to s. 61L of the Crimes Act 1900 (NSW). The offending alleged in counts 2, 4, 6 and 8 was contrary to s. 61 of the same Act, and that alleged in count 3 was contrary to s. 61I.

5. [5]

   At the commencement of the trial, counsel for the respondent objected to the evidence of the respondent’s two children, SG and GG. Having heard submissions, his Honour excluded the evidence of both witnesses.

6. [6]

   By notice dated 8 May 2017, the Crown appeals to this Court against his Honour’s decision to exclude the evidence of SG. No issue is taken with his Honour’s decision with respect to the evidence of GG.

The nature of the Crown appeal

1. [7]

   The appeal is brought by the Crown pursuant to s. 5F(3A) of the Criminal Appeal Act 1912 (NSW). That section is in the following terms:

2. [8]

   Counsel for the respondent submitted that however the evidence of SG was viewed, its exclusion did not substantially weaken the prosecution’s case against the respondent and that accordingly, the jurisdiction of this Court to hear and determine the appeal pursuant to s. 5F(3A) was not enlivened.

3. [9]

   I am unable to accept that submission. As set out, the respondent is charged with a number of counts of assault. On the Crown case, the evidence of SG constitutes an eyewitness account of the alleged offending on 23 December 2015 which is the subject of counts 1, 2 and 3. For the reasons discussed below, the evidence of SG, taken at its highest, is capable of corroborating parts of the evidence of the victim of that alleged offending. It is the only corroborative evidence available. In these circumstances, its exclusion has clearly substantially weakened the prosecution’s case against the respondent. The requirements of s. 5F(3A) are therefore met.

The Crown case against the respondent

1. [10]

   At the time of the offending the respondent was married to FG. There are two children of the marriage, GG and SG. SG is currently 10 years of age and was aged 8 at the time of the alleged offending.

2. [11]

   Although the respondent faces eight separate counts, counts 1, 2 and 3 are those which are material for the purposes of the present appeal. In respect of those counts it is the Crown case that between about 1:00am and 2:00am on 23 December 2015, FG was asleep in her bed and SG was lying immediately next to her. It is alleged that the respondent came into the bed, climbed on top of FG, held her down and forced her to have penile/vaginal intercourse.

3. [12]

   On 30 December 2015 FG made a statement to police. In respect of the allegations which form the basis of counts 1, 2 and 3 she said the following (commencing at paragraph (5) of her statement):

4. [13]

   On 28 January 2016, SG was interviewed by police. The following extracts from that interview are relevant to the issues raised by the present appeal:

The reasons of the primary judge

1. [14]

   The primary judge set out the objection taken by the respondent to the evidence of both GG and SG in the following terms (at [3]):

2. [15]

   Commencing at [15], his Honour turned to consider the admissibility of SG’s evidence. He summarised parts of SG’s interview and concluded that her evidence was not relevant. He further concluded that its probative value was outweighed by the danger of unfair prejudice to the respondent such that, even if it were relevant, it should be excluded. I have set out below the relevant parts of his Honour’s reasons when dealing with the two grounds of appeal.

The reasons of the trial judge

1. [16]

   Commencing at [17] his Honour said:

2. [17]

   His Honour’s recitation of SG’s answer to Q.223 in the interview (which appears at [18] of his reasons) was not an entirely accurate statement of what SG had actually said. Moreover, Q.223 was asked shortly after a one minute break in the interview. It is evident from the questions and answers which preceded that break that SG’s account of events given in answer to Q.223 related to a specific incident. That is also evident from SG’s answer to Q.233.

3. [18]

   His Honour concluded that the evidence of SG was not relevant. His reasons for reaching that conclusion were expressed in the following terms (at [23]):

Submissions of the Crown

1. [19]

   The Crown submitted that in order to determine whether SG’s evidence was relevant, it was necessary for the trial judge to identify the facts in issue, and then assess the extent to which the evidence could rationally affect the probability of the existence of one or more of those facts. The Crown submitted that the facts in issue in respect of counts 1 to 3 included whether:

2. [20]

   Bearing those facts in issue in mind, the Crown pointed to the omission, in his Honour’s reasons, to any reference to those facts, to the Crown case, or to the specific parts of SG’s evidence upon which the Crown relied to support its case.

3. [21]

   The Crown submitted that SG’s evidence constituted an eyewitness account of the offending alleged in counts 1, 2 and 3, SG having told police that (inter alia) she saw the respondent enter the bedroom and lie on top of FG. It was submitted that such evidence could obviously affect the assessment of the probability of the existence of one or more of the facts in issue. It followed, the Crown submitted, that the evidence was relevant.

4. [22]

   The Crown further submitted that the trial judge’s reference to the possibility of FG having told SG about certain events (as opposed to SG having observed those events herself) indicated that in determining the relevance of the evidence, his Honour had had regard to the possibility that it was contaminated. The Crown submitted that such an approach reflected error because the trial judge was required to determine relevance on the basis that the evidence would be accepted, without considering questions of credibility or reliability.

Submissions of the respondent

1. [23]

   Counsel for the respondent accepted that the answers given by SG to questions asked of her in the interview were at least capable of establishing the fact that she had personally witnessed acts of violence by the respondent upon FG. However, he submitted that it was necessary to consider the evidence of SG in light of the imprecision in which she had expressed herself.

2. [24]

   It was submitted, in particular, that at the same time as SG told police that she saw certain events, she had suggested that her observations were images from a dream, that the events may have happened before she was born, and that she may have been told about various events by FG or by her brother. It was submitted that these statements suggested that what SG had told police was based upon things that she had been told by someone else, rather than something that she herself had witnessed. In these circumstances it was submitted that the evidence was not properly regarded as eyewitness testimony, and was not relevant.

Consideration

1. [25]

   Section 55 of the Evidence Act 1995 (NSW) (“the Act”) is in the following terms:

2. [26]

   In a criminal proceeding, the facts in issue are those which establish the elements of the offence: Hughes v The Queen [2017] HCA 20 at [16].

3. [27]

   The term “probative value” is defined in the Dictionary to the Act as follows:

4. [28]

   Section 56 of the Act further provides:

5. [29]

   The use of the word “could” in s. 55 means “it is possible that it may”. It follows that s. 55 is to be given a wide interpretation: Nye v State of New South Wales & ors [2002] NSWSC 1270 at [13]. The width of the section is also reflected in the fact that the effect of the evidence on the assessment of the relevant probability (namely the probability of the existence of a fact in issue) may be direct or indirect: Zaknic Pty Limited v Svelte Corp Pty Limited (1995) 140 ALR 701; [1995] FCA 1739 at [11]. Consistent with this approach, in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the majority (French CJ, Kiefel, Bell and Keane JJ) said (at [38]):

6. [30]

   As is clear from the penultimate sentence in [38] of the majority’s judgment, relevance is to be determined on the basis that the evidence will be accepted. In this regard, the majority went on to say (at [39] – [40]):

7. [31]

   Their Honours continued (at [52]):

8. [32]

   For the reasons set out in [17] above, it is apparent from a reading of the whole of the interview that in answering Q.223, SG was referring to a specific incident which occurred shortly before Christmas 2015. This is of some significance bearing in mind the Crown case that the offending in counts 1, 2 and 3 occurred on 23 December 2015. Part of the account given by SG in answer to Q.223 was that the respondent had “(gone) on top of (her) Mum”. One of the facts in issue is whether the respondent climbed on top of SG. However in reaching his determination, the trial judge did not consider the nature of the Crown case on counts 1, 2 and 3 and did not identify the facts in issue. Both of those steps were essential to a determination of the relevance of the evidence of SG.

9. [33]

   Moreover, it is clear from his Honour’s reference to there being “evidence that (FG) told (SG) things about events occurring at uncertain times” that in determining the relevance of the evidence, his Honour had regard to its reliability. That reflects an approach contrary to that prescribed in IMM. It was not part of his Honour’s function, in determining relevance, to consider whether or not there may be a basis or bases for the rejection of the evidence by the jury. His Honour was required to take the evidence at its highest and assume that it would be accepted.

10. [34]

    In the circumstances of the present case, that error in approach is highlighted by that part of SG’s answer to Q.223 in which she said:

11. [35]

    His Honour appears to have interpreted SG’s reference to “when my mum told me this” as an indication that FG told SG about the incident which is the subject of counts 1, 2 and 3. However, another interpretation is that SG’s expressed sadness was because FG had told her, not about any event, but about the fact that the respondent had asserted that FG’s allegations were a lie. That highlights the trial judge’s incorrect approach in failing to take the evidence at its highest.

12. [36]

    In these circumstances, the conclusion of the trial judge that it was “difficult if not impossible to extract any relevant evidence as to any particular event” was an error. Bearing in mind the width of s. 55 of the Act, the evidence of SG is plainly capable of rationally affecting, directly or indirectly, the assessment of the probability of one or more facts in issue. It follows that the evidence is relevant under s. 55 of the Act, and admissible under s. 56. Ground 1 is made out.

The reasons of the trial judge

1. [37]

   Having concluded that the evidence of SG was not relevant, the trial judge said (at [24]):

Submissions of the Crown

1. [38]

   The Crown submitted that his Honour had concluded that the evidence was lacking in probative value because of an ambiguity as to the timing of the events that SG had said that she witnessed, along with the fact that there was a possible alternative explanation for what SG had seen. The Crown again submitted that the trial judge’s failure to identify the facts in issue was material, and was indicative of error. The Crown further submitted that it was significant that the trial judge did not refer, at any stage, to SG’s assertion that she saw the respondent lie on top of FG, and that she heard her mother voice her lack of consent, both assertions being corroborative of FG’s evidence. These matters, it was submitted, were indicative of the high probative value of the evidence.

2. [39]

   It was further submitted that the danger of unfair prejudice identified by the trial judge, namely the difficulty for the respondent in adequately testing any assertions made by SG, was not a proper basis for excluding the evidence given its high probative value. It was submitted that any discrepancies in the evidence of SG, and any possible confusion regarding what she had said, did not render it likely that the evidence might be misused by a jury. The Crown submitted that evidentiary shortcomings of that nature were not uncommon, could be tested in cross-examination and would, if established, be readily apparent to the jury.

3. [40]

   The Crown submitted that if the correct approach were adopted it would necessarily lead to the conclusion that the probative value of the evidence was high, and that the danger of unfair prejudice was low. It was submitted that in the circumstances of the present case, any uncertainty or ambiguity arising from what SG told the police was not sufficient to rob the evidence of its high probative value, or to render its admission unfairly prejudicial to the respondent.

Submissions of the respondent

1. [41]

   Counsel for the respondent submitted that the probative value of the evidence depended upon how it was viewed. He appeared to accept that if the conclusion was reached that SG’s evidence amounted to an eyewitness account of the alleged offending (which is the basis on which the Crown puts it) then its probative value would be higher than would be the case if it was simply lead as evidence of complaint.

2. [42]

   However, counsel submitted that even if the evidence was relied upon as an eyewitness account, it remained the case that it was inherently confusing, and that SG had not given a clearly delineated account of events when she was interviewed. In particular, counsel submitted that it was not clear what event SG was talking about at any given point in the interview, resulting in an inability on the part of the respondent to properly test the evidence. It was submitted in these circumstances, the respondent would be placed at an unfair disadvantage in defending the allegations, and that it was open to the trial judge to reach the conclusion he did.

Consideration

1. [43]

   Section 137 of the Act is in the following terms:

2. [44]

   A determination of whether evidence should be excluded pursuant to s. 137 of the Act requires two separate assessments, followed by a final determination. The first assessment is that of the probative value of the evidence. The second is an assessment of the danger of unfair prejudice that might be caused to the accused by its admission. Once those assessments have been made, a trial judge must determine whether the identified danger of unfair prejudice outweighs the probative value of the evidence. If the result of that assessment is that the probative value of the evidence is so outweighed, the trial judge is obliged to exclude it: R v Burton [2013] NSWCCA 335 at [134] per Simpson J (as her Honour then was). The fact that there may be competing inferences which can be drawn from the evidence, or the fact that there may be alternative interpretations of it, are irrelevant to the assessment of probative value for the purposes of the section: Burton at [160].

3. [45]

   The unfair prejudice of which s. 137 speaks may be constituted by a danger that a jury may make improper use of the evidence, for example, by giving it more weight than it properly deserves, by considering it in a manner logically unconnected with the issues in the case, or by allowing it to provoke an irrational, emotional or illogical response. Unfair prejudice may also be occasioned because the evidence has some feature which is likely to lead to a jury giving it more weight than it warrants, or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence: R v Dickman [2017] HCA 24 at [48] per Kiefel CJ, Bell, Keane, Nettle and Edelman JJ citing Festa v R (2001) 208 CLR 593; [2001] HCA 72 at 602-603; [22] per Gleeson CJ.

4. [46]

   In the present case, the trial judge did not make an assessment of the probative value of the evidence. It is to be inferred that he concluded that its probative value was low because of the matters to which he referred at [23] of his judgment. For the reasons already given when considering ground 1, that approach reflected error. Taking it at its highest, the evidence of SG was an eyewitness account of events and was capable of corroborating specific aspects of the allegations made by FG. Bearing in mind the terms of the definition in the Dictionary to the Act, the probative value of that evidence was high.

5. [47]

   The unfair prejudice identified by the trial judge was that the matters to which he had referred made it “difficult if not impossible” for the respondent to adequately test the contents of any assertions made by SG. I am not able to accept that to be the case. It will be open to counsel for the respondent, as it would be at any trial, to cross-examine SG about her assertions. The obvious purpose of cross-examination is to test the assertions which are made in evidence in chief. There is, in my view, no danger of unfair prejudice to the respondent, be it on the basis identified by his Honour or otherwise.

6. [48]

   For these reasons, the probative value of the evidence is high and the danger of unfair prejudice is low. In those circumstances, s. 137 of the Act is not engaged. His Honour was in error in excluding the evidence on that basis.

CONCLUSION

1. [49]

   For the reasons outlined, the evidence is relevant and should not be excluded from the jury’s consideration. Because the matter has been fully argued, this Court should make orders determining the issue of the admissibility of the evidence of SG. To remit the matter for further argument in the District Court would serve no purpose: see R v Ali [2015] NSWCCA 72 at [74].

2. [50]

   In these circumstances, I propose the following orders:

   1. (1)

      The appeal by the Director of Public Prosecutions against the determination of his Honour Judge Williams SC of 5 May 2017 excluding the evidence of SG is allowed.

   2. (2)

      The determination of his Honour Judge Williams SC excluding the evidence of SG is set aside.

   3. (3)

      The evidence of SG is admissible in the proceedings against the respondent.