JW v R

1. [1]

   THE COURT: On 26 June 2019, JW (the appellant) was committed for trial to the District Court for three offences of common assault, contrary to s 61 of the Crimes Act 1900 (NSW), and one offence of aggravated sexual assault, contrary to s 61J(1) of that Act. All four offences were said to have been committed against the same complainant, who was in a domestic relationship with the appellant when the offending took place. At the time of the offending, the appellant was 18 years of age and the complainant was 15 or 16 years of age.

2. [2]

   On 18 October 2019, having conducted an inquiry in order to determine whether the appellant was unfit to be tried, McLennan SC DCJ so determined. That determination necessitated the appellant’s referral to the Mental Health Review Tribunal (MHRT) which, on 2 March 2020, made a determination pursuant to s 16 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (now repealed) (1990 Act or Mental Health Act 1990) that the appellant would not become fit to be tried within 12 months. It was not in dispute that the appellant had been diagnosed with an intellectual disability.

3. [3]

   Pursuant to s 19(1) of the 1990 Act, the Court, following notification by the Tribunal of its determination, was required to conduct a “special hearing”. Section 19(2) provided:

4. [4]

   The special hearing was conducted in the District Court at Tamworth before Marien SC ADCJ (the primary judge) over the course of nine days, with the indictment being formally presented on 28 October 2020. Section 21 of the 1990 Act relevantly provided that the accused person was to be taken to have pleaded not guilty, and that the special hearing was to be conducted “as nearly as possible as if it were a trial of criminal proceedings.”

5. [5]

   Following the special hearing, on 17 December 2020, the primary judge delivered ex tempore reasons for judgment, finding that on the limited evidence available the appellant had committed the four offences charged (the qualified findings of guilt). Relevantly, s 22(3)(c) of the 1990 Act provided that such findings following a special hearing are “subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings”.

6. [6]

   On 19 May 2021, the primary judge determined the penalties to be imposed upon the appellant pursuant to s 63 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (2020 Act or Mental Health Act 2020), which had commenced on 27 March 2021. It was common ground that, pursuant to the transitional provisions of the 2020 Act, the determination of appropriate penalties was to be governed by the 2020 Act and not the 1990 Act.

7. [7]

   Section 63 of the 2020 Act relevantly provides:

8. [8]

   The primary judge imposed the following penalties in accordance with s 63 of the Act:

   1. (1)

      for Count 1 (common assault): a limiting term of 3 months, commencing on 18 May 2021 and expiring on 17 August 2021;

   2. (2)

      for Count 2 (common assault): a community corrections order (CCO) of 12 months, commencing on 19 May 2021 and expiring on 18 May 2022;

   3. (3)

      for Count 3 (aggravated sexual assault): a limiting term of 3 years, commencing on 18 August 2021 and expiring on 17 August 2024; and

   4. (4)

      for Count 4 (common assault): a CCO of 12 months, commencing on 19 May 2021 and expiring on 18 May 2022.

9. [9]

   Pursuant to s 65(2) of the 2020 Act, the primary judge ordered that the appellant be detained in a mental health facility, namely the Forensic Unit at the Long Bay Hospital, pending review of the appellant by the MHRT.

10. [10]

    The appellant now appeals from the primary judge’s qualified findings of guilt in relation to each of the four offences charged, and also seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal from the penalties imposed by the primary judge. Grounds 1 and 2 relate to the appeal against the qualified findings of guilt, and are as follows:

11. [11]

    The tendency evidence referred to in Ground 1 consisted of evidence given by a witness called by the Crown, who had previously been in a sexual relationship with the appellant. The witness gave evidence to the effect that she had been sexually assaulted by the appellant over a year before Count 3 was alleged to have taken place (the tendency evidence). Following legal argument, the primary judge ruled that the tendency evidence was admissible pursuant to ss 97 and 101 of the Evidence Act 1995 (NSW).

12. [12]

    The telephone recording referred to in Ground 2 was one of two recorded telephone calls between the complainant and the appellant, which had been recorded by the complainant. The appellant objected to the tender of both recordings by the Crown pursuant to s 138 of the Evidence Act. Following legal argument, the primary judge admitted the first of the two recorded telephone calls, but excluded the second.

13. [13]

    The third ground of appeal relates to the application for leave to appeal against the penalties imposed by the primary judge, on the basis that they were manifestly excessive.

Factual background and charges

1. [14]

   The appellant and the complainant first met at a rodeo in Tamworth in March 2017. They then met again in April 2017, and commenced an intimate relationship. The complainant began to live with the appellant at his home in Oxley Vale. All four of the offences with which the appellant was charged were alleged to have taken place at those premises.

2. [15]

   The nature and detail of the alleged offending was described in the reasons of the primary judge, and only a brief summary is necessary for present purposes. The first charge (Count 1) was one of common assault, which was alleged to have occurred between 31 May 2017 and 1 August 2017. After an argument which took place in the bedroom of the Oxley Vale house, the complainant said that the appellant grabbed her by the throat, dragged her off her feet, and strangled her for about 30 to 40 seconds. She said that her throat was sore for the next couple of days.

3. [16]

   The second charge (Count 2) involved a common assault which was alleged to have occurred between 31 July 2017 and 2 September 2017. The complainant said that at about 5:30am, she heard an acquaintance of the appellant outside the house, calling to the appellant to come outside and talk with him. The complainant said that she sat up to get out of bed and asked the appellant to tell his acquaintance to go away. The appellant was alleged to have then grabbed the complainant by the hair and pulled her back onto the bed, saying “don’t worry about it”. The complainant said that he used “a little force” and that it hurt the top of her head.

4. [17]

   The third charge (Count 3) was one of sexual intercourse without consent in circumstances of aggravation, being that the appellant deprived the complainant of liberty before the commission of the offence. The offence was alleged to have occurred between 1 August 2017 and 30 October 2017. The complainant said that she and the appellant were playfully wrestling on a couch in the lounge room when the appellant suddenly used a phone charger cord to tie her wrists to her ankles, such that she could not free herself. She said that she repeatedly told the appellant to stop, but he lay on top of her, pulled her underpants down, and had very forceful penile-vaginal intercourse for about five minutes while she screamed “stop” and “no”. She said that during the intercourse she felt “horrible”, that it hurt, and that she later noticed scabbing on her wrists and soreness in her vagina.

5. [18]

   The fourth charge (Count 4) involved a common assault which was said to have occurred on 27 December 2017. The complainant said that the appellant became angry with her dog and kicked it, injuring its eye. After she took the dog to a veterinarian, the appellant angrily challenged her as to why she had done so. She entered her bedroom, closed the bedroom door and stood with her back against the door to prevent the appellant entering. She said that the appellant then punched the door multiple times, causing the door to strike the lower part of the back of her head.

6. [19]

   The appellant did not give evidence or call any witnesses at the special hearing. He also did not adduce any evidence save for the reports of a psychiatrist, Dr Anna Farrar, and a forensic psychologist, Dr Susan Pulman.

The admission of the tendency evidence

1. [20]

   In proceedings before the primary judge, the Crown sought to adduce tendency evidence from a witness who was given the pseudonym “BA”, and who was a previous sexual partner of the appellant. That evidence was relied upon in relation to Count 3, and its admission was objected to by the appellant. In essence, the tendency evidence consisted of evidence that the appellant had previously sexually assaulted BA in a manner which bore similarities to the allegations that were the subject of Count 3.

2. [21]

   For the purposes of the voir dire, the parties and the primary judge relied upon a statement made by BA to police on 18 October 2018, which set out the evidence she was prepared to give in a hearing. The allegations contained in the statement can be summarised as follows. In March 2016, while BA and the appellant were lying in bed, he started touching her bottom and thighs. BA told the appellant that she did not want to have sex, and went to get up to leave the room. The appellant grabbed BA’s arm, pulled her back onto the bed, pushed her hands down beside her and held her down with his forearm while pulling her pyjama shorts down. He placed his weight on her torso so that she could not move, and had non-consensual penile-vaginal intercourse with her.

3. [22]

   The appellant was not charged with any offences arising from the allegations the subject of the tendency evidence.

4. [23]

   Pursuant to s 97(1)(a) of the Evidence Act, the Crown served a notice upon the appellant in relation to the tendency evidence on 12 July 2019 (the tendency notice). The tendency notice characterised the tendency sought to be proved in the following terms:

5. [24]

   The tendency notice also particularised the following common features between the tendency evidence and the allegations which were the subject of Count 3:

6. [25]

   On 2 November 2020, after legal argument, the primary judge determined that the tendency evidence should be admitted. His Honour gave brief reasons for his decision, and stated that he would give full reasons at a later date. Following the special hearing, on 26 November 2020, his Honour gave his reasons for admitting the tendency evidence in an ex tempore judgment (the full tendency reasons). Later in the day on 26 November 2020, the primary judge delivered brief supplementary reasons for judgment, in which he addressed certain amendments to the Evidence Act which will be discussed in due course (the supplementary tendency reasons).

7. [26]

   It is convenient here to make several observations about his Honour’s reasons for the admission of the tendency evidence. First, in the full tendency reasons, which were given after the special hearing, his Honour referred to the tendency evidence as it was given by BA in oral evidence, rather than in her statement of 18 October 2019. His Honour acknowledged this in the following passage:

8. [27]

   Second, an important issue which arose in the course of the special hearing and which remains live on appeal was whether the admission of the tendency evidence was to be governed by the Evidence Act as it was before or after the amendments introduced by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) (the 2020 Amending Act). Those amendments came into force on 1 July 2020, after the appellant had been charged but before the commencement of the special hearing. The substance of those amendments is discussed at [43] below. Whether the amendments apply to these proceedings turns upon the interpretation of the transitional provisions contained in Part 6 of Schedule 2 to the Evidence Act. Those provisions are considered at [46] ff below.

9. [28]

   In his full tendency reasons, the primary judge proceeded on the basis that the applicable legislation was the Evidence Act as it was before the amendments effected by the 2020 Amending Act. This approach was consistent with the submissions of both parties in the course of the special hearing. After a discussion of the relevant authorities, his Honour stated that he was “clearly of the view that the tendency evidence sought to be relied upon by the Crown does have significant probative value”. In the following passage, his Honour noted a number of similarities or links between the evidence of BA and that of the complainant:

10. [29]

    His Honour then reached the following conclusions:

11. [30]

    In his supplementary tendency reasons, delivered later in the day on 26 November 2022, his Honour addressed the possibility that the amendments introduced by the 2020 Amending Act may apply to these proceedings. However, his Honour only referred to one of the relevant amendments introduced by the 2020 Amending Act, being the amendment to s 101(2) of the Evidence Act. After noting that the amendment had made the test for admissibility less stringent, His Honour expressed the view that:

12. [31]

    Neither counsel below brought to his Honour’s attention the fact that the 2020 Amending Act introduced other amendments relevant to these proceedings, namely ss 94(4)–(5) and 97A of the Evidence Act.

The admission of the recorded telephone call

1. [32]

   Before the primary judge, the Crown sought to tender two recorded telephone calls between the complainant and the appellant, made by the complainant on 29 August 2018 (first phone call) and 1 September 2018 (second phone call). After objections were raised by counsel for the appellant, the primary judge admitted the first phone call, but excluded the second phone call pursuant to s 138 of the Evidence Act. That section provides:

2. [33]

   It was common ground that the first phone call was recorded without the knowledge or consent of the appellant. The Crown conceded below that the recording was therefore obtained in contravention of s 7(1) of the Surveillance Devices Act 2007 (NSW). That section relevantly provides:

3. [34]

   The second phone call occurred two days after the complainant contacted the police, on 1 September 2018. The complainant told the appellant at the outset of the call that it was being recorded, but she then proceeded to make a number of false statements to the appellant to the effect that she would not make a complaint to the police. The primary judge found that the recording of the second phone call had been obtained improperly, principally because it contained admissions which had been induced by the making of false statements. His Honour then excluded the recording pursuant to s 138(1), considering that the public interest in its admission did not outweigh the public interest in its exclusion. As no challenge is made to that determination on appeal, no further discussion of the second phone call is necessary.

4. [35]

   It is now convenient to summarise the contents of the first phone call. Both the audio recording and a transcript of the conversation were in evidence on appeal. As was observed by the primary judge, the phone call clearly contains admissions on the part of the appellant. The recording commences with the following exchange:

5. [36]

   Later in the conversation, the following exchange took place

6. [37]

   Later again, the appellant said:

7. [38]

   The primary judge noted that the allegations put to the appellant by the complainant at the beginning of the recording refer to the conduct which is the subject of Counts 1, 3 and 4 on the indictment. His Honour observed that the appellant did not deny the allegations, and did not state to the complainant that he did not understand what she was talking about. His Honour then found that, arising from the contents of the phone call, “[t]here are clear inferences and implications of admissions; that is, statements against his self‑interest in relation to the allegations.”

8. [39]

   His Honour then turned to an assessment of the considerations enumerated in s 138(3) of the Evidence Act. His Honour’s findings in relation to those factors can be summarised as follows:

   1. (1)

      The evidence had “high probative value, being evidence of admissions” (s 138(3)(a)).

   2. (2)

      The evidence was “highly important… in the proceedings”, being evidence of admissions (s 138(3)(b)).

   3. (3)

      The charged offences were of assault and sexual assault, and the sexual assault offence was very serious at law (s 138(3)(c)).

   4. (4)

      The complainant did not know that her conduct was unlawful when she recorded the first phone call, and the illegality was therefore not deliberate or reckless. This finding was relevant to both the gravity of the impropriety or contravention (s 138(3)(d)) and whether the conduct was deliberate or reckless (s 138(3)(e)).

   5. (5)

      Section 138(3)(f), which directs attention to whether the improper conduct infringed a right recognised by the International Covenant on Civil and Political Rights, was not relevant.

   6. (6)

      It was unlikely that any legal proceedings would be taken in relation to the complainant’s illegal conduct, given she was unaware that it was illegal. The consideration referred to in s 138(3)(g) was therefore neutral.

   7. (7)

      It would have been “perfectly easy, if the complainant had approached the police”, to have obtained a warrant allowing her to lawfully record a conversation with the appellant (s 138(3)(h)).

9. [40]

   In determining whether the evidence should be admitted, the primary judge “placed great weight” upon the fact that the complainant did not know that the recording of the first phone call was illegal, and that her illegal conduct was not deliberate or reckless. His Honour was satisfied that the public interest in admitting the phone call outweighed the public interest in its exclusion, and therefore did not exclude the recording pursuant to s 138.

10. [41]

    His Honour then considered whether the evidence should be excluded pursuant to s 90 of the Evidence Act, which confers a judicial discretion to exclude evidence of an admission where the use of the evidence would be unfair to a defendant. His Honour considered that the use of the evidence would not be unfair to the appellant, and thus did not exclude the recording pursuant to s 90. No issue was raised on appeal in relation to that determination.

The first ground of appeal

1. [42]

   This ground of appeal concerns whether the primary judge erred in admitting the tendency evidence.

2. [43]

   The provisions of the Evidence Act which deal with the admissibility of tendency and coincidence evidence were substantially altered by the passage of the 2020 Amending Act, which came into force on 1 July 2020. The amendments introduced by that Act (together, the 2020 Amendments) relevantly included:

   1. (1)

      the introduction of s 94(4), which excludes the operation of any common law or equitable principles which might restrict the admissibility of tendency or coincidence evidence about a defendant;

   2. (2)

      the introduction of s 94(5), which precludes a court from having regard to the possibility of collusion, concoction or contamination in determining the probative value of tendency or coincidence evidence;

   3. (3)

      the introduction of s 97A, which applies only to proceedings involving sexual offences against people under 18 years of age, and which creates a rebuttable presumption that tendency evidence about a defendant’s sexual interest in children, or acts in accordance with such an interest, will have significant probative value; and

   4. (4)

      the amendment of s 101(2), such that the probative value of tendency evidence need not “substantially” outweigh the danger of unfair prejudice to a defendant.

3. [44]

   The appellant submitted that the admissibility of the evidence was to be determined in accordance with the Evidence Act as it was before the introduction of the 2020 Amendments, while the Crown, taking a different position from that taken during the special hearing, contended that the applicable legislation was the Evidence Act as it was after the introduction of those amendments.

4. [45]

   Importantly, counsel for the appellant indicated that, if the later version of the Act were found to apply, the appellant would be bound to concede the first ground of appeal.

5. [46]

   The resolution of this preliminary question turns on the construction of cl 28 of Schedule 2 to the Evidence Act. That clause provides:

6. [47]

   The Crown contended that the word “hearing” in cl 28, properly construed, refers to the “special hearing” to determine whether the appellant had committed the charged offences, and not the inquiry as to fitness which was held prior to the 2020 Amendments commencing. Ms Bonnor, who appeared for the Crown, placed reliance on the case of GG v R (2010) 79 NSWLR 194; [2010] NSWCCA 230 (GG), in which this Court considered the construction of a transitional provision in the Evidence Act which was relevantly identical to cl 28. In that case, Beazley JA (Buddin and Barr AJ agreeing), after referring to a number of authorities including R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281; R v Pearson (Court of Criminal Appeal (NSW), 5 March 1996, unrep); and R v Adamcik (Court of Criminal Appeal (NSW), 22 November 1996, unrep), said (at [101]–[102]):

7. [48]

   The latter question was recently considered by the High Court in the decision of Stephens v The Queen [2022] HCA 31. There, the Court held that s 80AF of the Crimes Act, for which there was no relevant transitional provision, did not apply to a criminal trial which had already begun when the section came into force. After noting (at [7]) that “the question of when a trial begins may have a different answer for different purposes”, Keane, Gordon, Edelman and Gleeson JJ went on to say (at [8]):

8. [49]

   Although not noted in submissions for the Crown, reliance on the case of GG was particularly apt in this context, as the authority was expressly referred to in the second reading speech to the 2020 Amending Act (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 February 2020 at 1917), in which it was said:

9. [50]

   In the case of a special hearing pursuant to s 19 of the Mental Health Act 1990, the Crown submitted that the relevant “hearing” began when the indictment was formally presented – which, in this case, was on 28 October 2020. It was submitted that, as s 21(3)(a) of the 1990 Act provides that an accused is taken to have pleaded not guilty, the ordinary requirement for the accused to have been arraigned was not relevant for present purposes. The consequence of this construction would be that, as the special hearing began after the commencement of the 2020 Amendments (which occurred on 1 July 2020), those amendments did apply to the admissibility of the tendency evidence.

10. [51]

    The appellant, on the other hand, contended that the “hearing” of the present proceedings had already begun by the time the 2020 Amendments entered into force. In support of this submission, reliance was placed upon the fact that a hearing had taken place before McLennan SC DCJ in October 2019 to determine whether the appellant was fit to be tried. It was also emphasised that, due to the nature of proceedings under the Mental Health Act 1990, the appellant was not arraigned at the special hearing before the primary judge (or indeed at any other time).

11. [52]

    In oral argument, counsel for the appellant submitted that the finding of unfitness to be tried was “the equivalent” of an arraignment, because the appellant “was not going to be arraigned after that finding was made”, as he was taken to have entered pleas of not guilty pursuant to s 23(3)(a) of the 1990 Act. Counsel thus sought to distinguish GG and the other cases relied upon by the Crown, on the basis that they did not concern circumstances where an accused was found unfit to be tried.

12. [53]

    True it is that there will be no arraignment of an accused in proceedings under s 19 of the Mental Health Act 1990 such as the present where the accused has been determined to be unfit to be tried. As a consequence, the observations of Beazley JA in GG and extracted above are not directly applicable. These proceedings are not ordinary criminal proceedings, and the hearing following relevant determinations by the Court and the MHRT is described as a “special hearing”.

13. [54]

    However, as was observed by counsel for the Crown in oral argument, the 2020 Amendments do not apply only to criminal proceedings on indictment, nor are they limited to criminal proceedings at all (with the exception of the new s 97A). The provisions in the Evidence Act concerning tendency and coincidence evidence introduced by the 2020 Amendments apply to a range of criminal and civil proceedings. Where the application of the transitional provisions is in issue, it will be necessary in each case to identify the relevant “hearing” of the proceedings for the purposes of the transitional provision in the Evidence Act (being cl 28 of Schedule 2), and to determine when it began.

14. [55]

    In oral argument, the appellant submitted that, as the transitional provisions are silent in relation to proceedings where an accused is found unfit to be tried, “one needs to really look at the fitness legislation … and then try and find the equivalent of what would be seen as a hearing which is what is defined in the transitional legislation.”

15. [56]

    So much may be accepted. The difficulty facing the appellant, however, is that when one “look[s] at the fitness legislation” (that is, Part 2 of the Mental Health Act 1990), the text of the relevant provisions indicates that the procedure to determine an accused’s fitness to be tried is not the equivalent of a “hearing” of proceedings. While the reasons given by McLennan SC DCJ were not before this Court, his Honour must have determined that an inquiry should be conducted to determine whether the appellant was fit to be tried pursuant to s 8 of the 1990 Act, and conducted that inquiry, as required by s 10 and in accordance with s 12 of that Act. The terms of s 8 are as follows:

16. [57]

    The terms of this section provide a very strong textual indication that the inquiry to determine the accused’s fitness to be tried is preliminary to, and distinct from, the substantive “hearing of the proceedings in respect of the offence”. It is to be conducted before that hearing. Indeed, the very language of an “inquiry” indicates that the determination of fitness to be tried is a sui generis step in proceedings, and is not in the nature of a “hearing” to determine the underlying charges. In this context, s 12(2) of the 1990 Act provided that the inquiry “is not to be conducted in an adversary manner”, and s 12(3) that “[t]he onus of proof of the question of a person’s unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence.”

17. [58]

    On the other hand, there are a number of textual indications to the effect that a “special hearing” pursuant to s 19 of the 1990 Act is a substantive hearing of the underlying proceedings, which is temporally and procedurally distinct from the inquiry to determine fitness to plead.

18. [59]

    The terms of s 19(2) define a special hearing, and have been set out at [3] above. That definition supports the conclusion that a “special hearing” in proceedings under the Mental Health Act 1990 is the analogue of a trial in criminal proceedings. It is not held for the purpose of determining a preliminary issue, but rather to determine the substantive question to be tried: that is, in the language of s 19(2), whether “on the limited evidence available, the person committed the offence charged”. This conclusion is supported by the terms of s 21(1) of the 1990 Act, which provides that “a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.”

19. [60]

    For the above reasons, and having regard to the approach outlined by Beazley JA in GG (and referred to with approval in the second reading speech to the 2020 Amending Act), the “special hearing” held pursuant to s 19 of the 1990 Act is the relevant “hearing” for the purposes of cl 28 of Schedule 2 to the Evidence Act. It is not in dispute that, at the time of the commencement of the 2020 Amending Act, the special hearing had not yet begun. It therefore follows that the 2020 Amendments applied to the admission of the tendency evidence.

20. [61]

    The primary judge was led into error by the approach taken by counsel at the special hearing. However, that error was favourable to the appellant and, as such, did not give rise to a “substantial miscarriage of justice” within the meaning of s 6(1) of the Criminal Appeal Act. As noted above, the appellant conceded that, in the eventuality that the 2020 Amendments were found to apply to the admission of the tendency evidence, the first ground of appeal must fail.

21. [62]

    For completeness, a further submission advanced in support of the first ground of appeal should be dealt with. This submission related to the fact that, as noted at [26], when the primary judge gave full reasons for his decision to admit the tendency evidence, his Honour referred to the evidence of BA and the complainant as it was given in the course of the hearing after his ruling to admit the tendency evidence, rather than in the witness statements which had been provided on the voir dire and by reference to which his decision to admit the tendency evidence must have been made.

22. [63]

    The Crown submitted that “[f]or the purposes of determining admissibility, there was no material difference between the accounts, and no miscarriage of justice arises”.

23. [64]

    This argument was not addressed by counsel for the appellant in his oral submissions on appeal. The matter was raised by the Court, however, in the course of the Crown’s oral submissions. The Crown’s position was that the primary judge’s approach may have been unorthodox, but repeated the submission that the evidence in the witness statements was so similar to the evidence given at the special hearing that his Honour’s approach had no material effect on his decision, and thus no miscarriage of justice resulted.

24. [65]

    Shortly after the conclusion of the appeal hearing, on 5 August 2022, the Crown provided a supplementary note which set out in tabular form the relevant evidence given by the complainant and BA in their witness statements, by comparison to what was said in oral evidence. Counsel for the appellant made no objection or submission in reply to this supplementary note. Counsel for appellant also did not draw the Court’s attention to any particular discrepancies between the evidence in the witness statements and that which was given at the special hearing, either in written or oral submissions.

25. [66]

    A review of the tabular comparison provided by the Crown, as well as the witness statements and transcript of proceedings before the primary judge, supports the Crown’s submission that the oral evidence given in the special hearing was substantially the same as that contained in the witness statements.

26. [67]

    Whether his Honour’s approach (in referring to the evidence actually given at the hearing to support the reasoning underpinning a decision he had made prior to it being given) was merely unorthodox or entailed a “wrong decision of any question of law” within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) (see also Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29), any such error had no impact on the decision to admit the evidence and, as with the application of the wrong version of the Evidence Act, did not result in a substantial (or any) miscarriage of justice warranting appellate intervention.

The second ground of appeal

1. [68]

   The standard of appellate review to be applied on an appeal from a decision made pursuant to s 138 of the Evidence Act is the subject of some uncertainty. In R v Riley [2020] NSWCCA 283 (Riley), Bathurst CJ, although ultimately finding it unnecessary to decide, expressed the view that the exercise to be undertaken in applying s 138 admits of only one outcome, and that the review of such a decision is not subject to restraints of the kind considered in House v The King (1936) 55 CLR 499; [1936] HCA 40. After referring to a number of authorities, the Chief Justice said the following (at [109]–[112], Wilson J agreeing at [139]):

2. [69]

   This Court’s decision in Rogerson v R [2021] NSWCCA 160 at [542]–[548] contains a similar analysis in relation to s 135 of the Evidence Act: see also Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9.

3. [70]

   The appellant’s submissions were silent on the question of which standard of appellate review should be applied.

4. [71]

   The Crown submitted that it was not necessary to determine the applicable standard of appellate review, as the appeal should be dismissed even if the so-called “correctness standard” applies.

5. [72]

   For the reasons which follow, regardless of which standard of appellate review is applied, there was no appellable error in his Honour’s decision to admit the first phone call.

6. [73]

   In written submissions, the appellant mounted a number of attacks against the findings of the primary judge individually addressing each of the eight factors enumerated in s 138(3) of the Evidence Act: see [39] above. For present purposes, these can be distilled into three contentions. The first concerns the probative value of the phone call and its importance in the proceedings; the second concerns the gravity and recklessness of the complainant’s illegal conduct; and the third concerns the relevance of whether any other proceedings were likely to be brought in relation to impropriety.

7. [74]

   First, the appellant contended that the probative value of the first phone call was low, contrary to the finding of the primary judge. For substantially the same reasons, the appellant contended that his Honour was incorrect in finding the evidence “highly important” in the proceedings. These submissions may be conveniently addressed together.

8. [75]

   In support of these submissions, the appellant relied upon the following matters:

   1. (1)

      the appellant’s intellectual disability;

   2. (2)

      that the evidence is not capable of being taken as a specific admission to the offence of aggravated sexual assault, as:

   3. (3)

      that the admissions contained in the first phone call substantially duplicate evidence which had already been admitted, consisting of Snapchat messages between the complainant and the appellant.

9. [76]

   Before proceeding to address the appellant’s submissions, it is useful to identify the purpose for which the evidence was sought to be adduced. The Crown relied upon the phone call (extracts of which are set out at [35]–[37] above) as evidence of implied admissions made by the appellant that he committed the three offences referred to by the complainant at the outset of the phone call, namely Counts 1, 3 and 4. It is not in dispute that the phone call contained admissions on the part of the appellant.

10. [77]

    There are at least three features of the recorded phone call that are probative of the facts in issue – that is, capable of rationally supporting an inference that the appellant committed the offences charged. First, and most significantly, at no point does the appellant deny the allegations put to him by the complainant. At the outset of the call, the complainant says, “[a]ll I want to know is why did you strangle me when I done nothing wrong to you, and why did you rape me when I told you no over and over again, and why did you hit the door until you got me?” The appellant’s response – “I don’t know … to tell you the truth. I don’t know what the fuck I was thinking, to tell you the truth” – makes no attempt to deny any of the allegations put to him, and does not indicate any inability to understand what has been said. Put simply, one would expect that, if the appellant had not committed the offences to which she referred, he would have either denied the complainant’s claims or expressed some confusion about what she was saying.

11. [78]

    Second, at several points in the conversation the appellant expresses remorse, regret and frustration at himself, saying, among other things, “I fucked up”, “I am so fucken angry and pissed off” and “that’s not me”. And third, the appellant makes vague references to having done one or more acts or things which he regrets, saying “I regret every bit doin it”, “I’ve got no, why I was doin it … I’ve got no excuses” and “I regret doin everything I done, like fuck, I fucked it up”. Both these second and third features are capable of supporting a finding of consciousness of guilt, and may be seen to be consistent with an inference that the appellant did the acts to which the complainant referred.

12. [79]

    We now turn to the appellant’s contentions outlined at [75] above. With respect to the appellant’s intellectual disability, the Crown submitted that evidence must be taken at its highest when assessing probative value in the context of s 138(3)(a) (referring to Riley at [120]–[125] per Bathurst CJ), and therefore that the appellant’s “cognitive difficulties did not diminish the probative value of the evidence”. This essentially amounted to a submission that the appellant’s intellectual disability was a matter going to the reliability of the evidence sought to be adduced, and therefore should not be taken into account when assessing its probative value: see IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 (IMM) at [48]–[52].

13. [80]

    The requirement that evidence of an admission be “taken at its highest” in assessing its probative value is not without limit: in the context of tendency evidence, see IMM at [39], [50] and [62]; The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [69]. As French CJ, Kiefel, Bell and Keane JJ said in IMM at [39]:

14. [81]

    At [50] their Honours confirmed the proposition that, at the stage of determining admissibility, the evidence is to be taken “at its highest” but noted, by reference to the well-known example of “an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified”, that the probative value may ultimately be assessed differently by the tribunal of fact:

15. [82]

    At [62] their Honours went on to doubt the probative value of the tendency evidence given by the complainant herself, an approach that qualifies the proposition that the decision to admit the evidence assumes that it will be accepted and is to be taken “at its highest”.

16. [83]

    An example of the limitation on the principle that the probative value of the evidence is to be “taken at its highest” is Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA 183. Beech-Jones CJ at CL (Button and Hamill JJ agreeing) upheld a trial judge’s decision that certain admissions were inadmissible in circumstances where the trial judge made a factual finding that the admissions were not the result of his true and actual memory of events but were a reconstruction.

17. [84]

    In the present case, we accept the Crown’s submission that the appellant’s intellectual disability should not be taken to diminish the probative value of the phone call for the purpose of assessing probative value in the context of s 138(3)(a). Whether the appellant’s intellectual disability should result in a reduction in the weight to be given to the admissions contained in the phone call is, of course, an entirely separate matter, and one which falls to be determined by the tribunal of fact. Indeed, the primary judge heard submissions on this question and expressly considered it in his subsequent reasons for finding that the appellant committed the offences charged.

18. [85]

    However, even if this conclusion is wrong, and the appellant’s intellectual disability were to be taken into account in assessing the probative value of the phone call, we do not consider that disability to reduce the capacity of the phone call to prove the fact in issue. The primary judge found, albeit in the context of s 90 of the Evidence Act, that “the accused understood what was being said in the conversation, that his answers were responsive, [and] that there is no suggestion of confusion in his mind or that he did not understand what was being discussed”.

19. [86]

    For similar reasons, we do not accept the appellant’s submissions that the admissions contained in the phone call are not capable of being taken as admissions to the particular offence of aggravated sexual assault. Although the appellant does not directly refer to the specific allegation of sexual assault, the inference sought to be drawn by the Crown does not rely upon a direct acknowledgement of the conduct constituting each count. If anything, the inference sought to be established by the Crown may be most persuasive in respect of Count 3: one would expect that, if the allegations put to the appellant were not true, he would be most likely to deny or at least express some confusion about the most serious and confronting of those allegations, being that he had raped the complainant.

20. [87]

    As to the fact that the complainant did not put to the appellant that he had tied her up before the sexual assault took place, this did not preclude a finding of high probative value in relation to other facts in issue. Clearly enough, the admissions contained in the recorded phone call were not capable of directly establishing the existence of the circumstances of aggravation described in s 61J(2)(i) of the Crimes Act – being that the appellant deprived the complainant of liberty before the commission of the offence. That is not the purpose for which they were adduced. However, they are probative of a number of other facts in issue – namely, the other elements of the aggravated sexual assault offence, and the elements of the offences which are the subject of Counts 1 and 4. A given piece of evidence need not be probative of all the elements of an offence in order to have high probative value.

21. [88]

    We now turn to consider the relevance of the Snapchat messages referred to at [75(3)] above. In oral argument, counsel for the appellant identified the particular messages upon which he relied. He submitted that they “contained largely the same general allegation [as in the recorded phone call] which related to three matters at the same time and a global … admission”. As a consequence, the appellant contends that both the probative value of the phone call and its importance in the proceedings (which are the factors prescribed by s 138(3)(a)–(b)) are diminished.

22. [89]

    The Snapchat messages to which counsel referred appear to have been sent on 23 March 2018. So far as they are relevant, they contain the following exchanges:

23. [90]

    It may be accepted that, where a party seeks to adduce evidence that is similar in effect to material which is already in evidence, the “importance of the evidence in the proceeding” will be reduced. There may be some question about whether the same is true of the probative value of evidence, particularly in light of the statement of the High Court in Kadir v The Queen; Grech v The Queen (2020) 267 CLR 109; [2020] HCA 1 (Kadir) at [42] that, in the context of s 138 of the Evidence Act, “[e]vidence may possess high probative value but not be important in the proceeding in a case in which other equally probative evidence is available to the prosecution.” (emphasis added)

24. [91]

    For present purposes, it is not necessary to resolve that question. Accepting, for argument’s sake, the appellant’s submission that the probative value of evidence will be reduced where equivalent material is already in evidence, we are nonetheless satisfied that the primary judge did not err in finding that the probative value of the phone call was high. The contents of the recorded phone call are not simply duplicative in terms of probative value and effect of the Snapchat messages extracted above.

25. [92]

    To begin with, the allegations put to the appellant in the above messages are considerably less clear than those in the phone call. Importantly, the words “you have raped” do not specify that it was the complainant who was allegedly raped. By contrast, the allegation in the phone call is unequivocal: “why did you rape me when I told you no over and over again…”. Equally importantly, it is unclear what the appellant was purporting to say by his response, “i ingredient what I done there ... I never do it again”. The word “ingredient” may have been an autocorrection of another word the appellant intended to write but that is not clear. The appellant’s response in the phone call, which is considered at [77]–[78], lends considerably greater support to the inference sought to be established by the Crown.

26. [93]

    While it may be accepted that the Snapchat messages contain admissions of a broadly similar nature to those in the phone call, in our view the admissions in the phone call are substantially more powerful and less ambiguous. That is to say, this is not a case such as that contemplated by the High Court in Kadir at [42], in which “other equally probative evidence is available to the prosecution.”

27. [94]

    The primary judge was therefore correct in finding that the probative value of the recorded phone call was high, and that the evidence was “highly important” in the proceedings.

28. [95]

    Second, the appellant appears to contend that his Honour did not give adequate weight to the gravity of the complainant’s contravention, and ought to have found that the complainant’s contravention was “at least reckless”. The written submissions on this issue were ambiguous, and counsel did not elaborate upon them in oral argument.

29. [96]

    In respect of the gravity of the contravention, the appellant submitted that the complainant’s conduct was a “serious breach” of the Surveillance Devices Act, carrying a maximum penalty of five years’ imprisonment.

30. [97]

    In support of the submission that the contravention was reckless or deliberate, the appellant relied upon the following matters:

    1. (1)

       that the complainant was 17 years old at the time of the recordings;

    2. (2)

       that the complainant recorded the first phone call “[i]n contemplation of complaining to police”;

    3. (3)

       that the complainant contacted the appellant’s previous partner (being BA) and “elicited the evidence contained in the tendency notice”; and

    4. (4)

       that, after the recordings were made, police informed the complainant that the recording was illegal, and she proceeded to record a further phone call with the appellant.

31. [98]

    It is difficult to see how the first of these matters bears upon the question of whether the complainant’s contravention was reckless or deliberate. The second matter is little more than an assertion as to the complainant’s state of mind at the time of the phone call, and is not substantiated by reference to any material in evidence. The third and fourth matters relate to events which occurred after the recording of the phone call (the first phone call occurred on 29 August 2018, and BA was first contacted by a mutual friend of the complainant on 19 September 2018). It is unclear how these subsequent events are capable of supporting a finding that, at the time of the first phone call, the complainant was aware of or reckless to the fact that her covert recording was unlawful.

32. [99]

    The appellant has pointed to no basis for concluding that the primary judge was incorrect in finding that the complainant was unaware of the illegality of her conduct, and that her contravention was neither deliberate nor reckless. On reviewing the documentary evidence which was available to the primary judge on the voir dire, we have reached the same conclusion.

33. [100]

    In this respect, we accept the Crown’s submission that the present case is distinguishable from Kadir, in which the High Court held a number of audio-visual recordings obtained by a private individual in contravention of the Surveillance Devices Act to be inadmissible. In that case, it was held that the repeated contraventions which led to the evidence being obtained were greater in gravity because, in each case, “the recording was made in deliberate contravention of the law with a view to assembling evidence which it was believed the proper authorities would be unable to lawfully obtain”: at [37].

34. [101]

    Third, the appellant attacks the primary judge’s finding that s 138(g), which directs attention to whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention, was a “neutral factor”. This finding followed his Honour’s observation that it was unlikely that any legal proceedings would be taken in relation to the complainant’s illegal conduct.

35. [102]

    The written submissions in support of this contention consist of only the following sentence: “[i]t is submitted that this is not a neutral matter as the complainants [sic] illegal conduct from 2018 has not attracted any proceeding to date.”

36. [103]

    This contention can be dealt with in short compass. The submission appears to fundamentally misunderstand the import of s 138(g) of the Evidence Act. The operation of that subsection was explained in the following passage in Kadir at [16], from which the primary judge appears to have drawn his choice of language:

37. [104]

    In respect of this factor, the present case is analogous to the facts of Kadir. The primary judge made no error in describing s 138(3)(g) as a neutral factor.

38. [105]

    Counsel for the appellant advanced no submission to the effect that error can be discerned in the weighing exercise then undertaken by the primary judge, in determining whether the desirability of admitting the evidence outweighs the undesirability of its admission. For the sake of completeness, we are satisfied that, having regard to the considerations set out in s 138(3), and regardless of which standard of appellate review should be applied, the primary judge did not fall into error in finding that the public interest in admitting the recording of the first phone call outweighed the public interest in its exclusion.

39. [106]

    For these reasons, the appellant’s submissions that the primary judge’s findings in respect of the considerations enumerated in s 138(3) were infected by error should be rejected. The following additional observations should, however, be made.

40. [107]

    First, the primary judge’s decision to admit the evidence of the first recording (but not the second), by reference to the criteria in s 138(3), and this Court’s endorsement of it, is dependent on the particular facts and circumstances of the case. This judgment ought not to be taken as an endorsement of the illegal use of recording devices in cases of this kind, by complainants in such cases, or (in particular) in investigations where the suspect has an intellectual disability, cognitive impairment or mental health issues.

41. [108]

    Secondly, while the evidence in this case supports the finding that the probative value of the evidence was not diminished by virtue of the appellant’s cognitive impairment, the fact that the target of the illegal recording has an intellectual disability will often be a highly relevant consideration to any decision under s 138. For example, if investigating police targeted such a person knowingly, that is likely to be a strong factor militating against the admission of the evidence (cf the judgment of Hamill J excluding evidence of a listening device recording when the suspect was in a mental health facility and the judge who issued the warrant under the Surveillance Devices Act was not aware of that fact: R v Simmons; R v Moore (No 3) [2015] NSWSC 189).

42. [109]

    Thirdly, and relatedly, the criteria in subsection (3) are not exhaustive. The ultimate question under s 138 is whether “the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”. The fact that the target of an illegally recorded telephone call suffers a disability may be relevant to the exercise of the power in various ways, both in the context of the general balancing exercise and pursuant to some of the factors listed in subsection (3).

The third ground of appeal

1. [110]

   JW also seeks leave to appeal against the limiting terms (which we will sometimes call “sentences”) imposed on 19 May 2021. The penalties imposed are set out at [8] above. For Count 1, the primary judge imposed a limiting term of 3 months commencing 18 May 2021. For Count 3 there was a limiting term of 3 years, cumulative on Count 1, commencing 18 August 2021 and expiring 17 August 2024. The primary judge ordered that the appellant be detained in a mental health facility during the currency of those limiting terms, pursuant to s 65(2) of the Mental Health Act 2020.

2. [111]

   In relation to Counts 2 and 4, the primary judge found that a sentence of imprisonment was not the only appropriate sentencing option and imposed a 12 month community corrections order in relation to each of those offences.

3. [112]

   The only ground of appeal raised on the application for leave to appeal against the sentence (Ground 3) was that “[h]is Honour erred in imposing a sentence which in all the circumstances is manifestly excessive.” The submissions were directed entirely to the 3 year limiting term imposed on Count 3.

4. [113]

   Under the umbrella of this general ground asserting latent error in the sentencing process, the appellant advanced a specific argument that ought – perhaps – to have been subject to a separate ground of appeal (cf Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379 at [8]). That complaint related to the approach the primary judge took to the relevance of general deterrence in light of the appellant’s cognitive impairment. We will deal with that aspect of the application under the single ground of appeal advanced on the appellant’s behalf.

5. [114]

   A review of the facts, as described at [17] above and in the reasons of the primary judge, demonstrates that Count 3 was a very serious example of the offence of aggravated sexual intercourse without consent. The offence carried a maximum penalty of 20 years’ imprisonment. Because the sentencing process followed a special hearing, there was no applicable standard non-parole period: Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D(1)(b).

6. [115]

   The primary judge noted that the circumstance of aggravation involved depriving the complainant of her liberty and that the offence was constituted by:

7. [116]

   The limited evidence available at the special hearing established that the complainant screamed “stop” and “no” during the incident and that the appellant laughed afterwards when the complainant said he had raped her. The appellant said it was not rape. The evidence also showed that the appellant had previously asked if he could tie the complainant up and that she had declined to participate in that activity.

8. [117]

   The primary judge found that the offence fell “at least in the midrange of objective seriousness for an offence of aggravated sexual assault”. While such a categorisation was not necessary in the absence of an applicable standard non-parole period, it was a finding that appropriately categorised the relative gravity of the offending.

9. [118]

   In written submissions, the appellant referred to the fact that the parties were in a relationship at the time of the sexual assault, were passionate enthusiasts of rodeo which involved “rope work”, remained together for a period after the offence and had a child together. It was submitted that these matters were relevant to sentencing, and somehow mitigated the appropriate punishment. We are unable to accept that submission. Any suggestion that the objective seriousness of the offence was reduced by reference to those matters was withdrawn at the hearing of the appeal.

10. [119]

    On the other hand, the appellant was an 18-year-old first offender, and his youth and cognitive impairment were significant features warranting substantial mitigation of the appropriate punishment. The primary judge said that he took those matters into account and the length of the limiting term imposed on Count 3, given the gravity of the offending and available maximum penalty, suggests that he did so.

11. [120]

    At the sentencing hearing, the appellant relied on reports from a forensic psychiatrist, Dr Farrar, and a forensic psychologist, Dr Pulman, as well as letters from a treating psychologist and a general practitioner. These were relevant to, and in most cases prepared for, the question of the appellant’s fitness to be tried. Each was also relevant to sentence. The evidence established that the appellant’s experience of incarceration was likely to be more onerous. There was also a character reference written by an employer and a transcription of a telephone call between the complainant and the appellant which provided evidence of the appellant’s remorse.

12. [121]

    The specific complaint made on the appellant’s behalf concerned the approach taken to general deterrence in view of the evidence of the appellant’s cognitive impairment. The evidence demonstrated that he had a substantial deficit in intellectual functioning and operated at a level at or below 99.7% of the general population. This meant that he was “vulnerable” and that his “coping mechanisms” and “problem solving ability” were compromised.

13. [122]

    Counsel pointed to a passage in the remarks on sentence in which the primary judge said:

14. [123]

    Taken in isolation, that observation might be thought to contravene well recognised principles that people with intellectual disabilities may be inappropriate vehicles through whom to send messages of deterrence: see Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [10], [53]-[54]; R v Letteri (Court of Criminal Appeal (NSW),18 March 1992, unrep) at 14; Champion v R (1992) 64 A Crim R 244 at 253-255; Ryan v Regina [2017] NSWCCA 209 at [20]-[21]; James v R [2021] NSWCCA 23 at [31]-[34]. However, the remark ought not to be considered in isolation and the impugned comment merely reflected the significance of deterrence in cases of domestic violence: cf, for example, Yaman v R [2020] NSWCCA 239 at [131] and Cherry v R [2017] NSWCCA 150 at [78]. Later in the remarks on sentence, his Honour said:

15. [124]

    His Honour stated and applied the law in this area correctly. The sentencing outcome does not suggest that his Honour failed to give the matter sufficient weight and the sentence imposed reflected the findings to which his Honour came and the application of correct sentencing principle.

16. [125]

    The primary judge also referred to the principles applicable to setting a limiting term under the relevant mental health legislation, which are found in ss 63-64 of the Mental Health Act 2020. His Honour set out the provisions at the beginning of the judgment and then summarised and applied them towards the end of the judgment. There is no suggestion that these principles were not considered and applied correctly and, accordingly, it is not necessary to make further reference to them.

17. [126]

    To succeed on a ground asserting that a sentence is “manifestly excessive”, an appellant must establish that the result is unreasonable, plainly wrong, or unjust: see, for example, Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]-[27]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22], [59]. Judges sitting in the intermediate appellate courts must not substitute their own view of the appropriate sentence for that of the primary judge, in whom the sentencing discretion resides. There is no single, correct sentence. This Court has held that the same principles apply when a limiting term is under appellate review by reference to a ground that the term is manifestly excessive: Goodridge v R [2014] NSWCCA 37 at [149]; R v AB [2015] NSWCCA 57 at [52].

18. [127]

    It might be thought that the limiting term imposed for Count 3 was a very stern one in view of the appellant’s youth, previous good character, and intellectual disability. However, the offending was very grave and we are unable to conclude that it was plainly wrong, unreasonable, or unjust.

19. [128]

    We would grant leave to appeal against the penalties imposed but dismiss the appeal against both the qualified findings of guilt and the penalties imposed.