R v Clarke

1. [1]

   THE COURT: The Director of Public Prosecutions appeals pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) from a pre-trial ruling by his Honour Judge Coleman SC. His Honour ruled that the Crown may not adduce evidence to prove against the respondent a tendency specified in a notice given under s 97 of the Evidence Act 1995 (NSW). The respondent has been indicted on 13 counts of sexual offending against three children who are siblings. Ten of the offences are alleged to have been committed against LB, the first two when he was aged 7 years and the remaining eight offences when he was aged between 14 and 16 years. One offence is alleged to have been committed against LB’s younger brother, KB, when he was 13 years old. The remaining two counts allege offences against the boys’ younger sister, BB, when she was 11 years old.

2. [2]

   By notice dated 21 October 2022 the Crown informed the respondent of its intention to adduce evidence of two specified tendencies. The respondent’s objection concerning the first tendency was resolved in favour of the Crown. The effect of that decision is that in its case on each of the 10 counts of sexual offending against LB, the Crown may rely upon LB’s evidence of each offence as proof of:

The issue on appeal – tendency (ii)

1. [3]

   So far as the Crown’s notice under s 97 of the Evidence Act concerns a second tendency, which is the subject of the present appeal, the notice was in the following terms:

2. [4]

   The substance of the evidence to prove the tendency, as identified in paragraph 3 of the notice, is constituted by the specified parts of the three police interviews with LB and one police interview with each of KB and BB. The answers relied upon, specified by numbers in the transcript of the interviews, constitute the Crown’s evidence of the acts alleged in each count. Each of the three complainants is the sole direct eyewitness to the conduct of the respondent that is said to constitute the offences concerning him or her, respectively. The answers nominated in the notice from the interviews of KB and BB include evidence of some uncharged instances of sexual touching and on the hearing of the appeal the Crown nominated additional answers concerning uncharged acts that it would rely upon from the first interview of LB conducted on 26 August 2021: Q/A 57, 65-74 and 211-212.

3. [5]

   The effect of allowing the evidence specified in paragraph 3 of the tendency notice to be relied upon as proof of tendency (ii) would be to make each complainant’s testimony concerning each count cross admissible against the respondent, for the tendency purpose, in the Crown’s case on all other counts concerning all complainants. A consequence would be that the respondent could have no objection to a trial of all counts concerning all complainants on the one indictment. That is the avowed objective of the prosecution.

4. [6]

   The learned judge ruled that the evidence is not admissible in proof of tendency (ii). The Director appeals from that decision as of right pursuant to s 5F of the Criminal Appeal Act.

The nature of the appeal

1. [7]

   The Director’s appeal is subject to the following constraint in sub-s (3A) of s 5F:

2. [8]

   The issue of admissibility engages ss 97 and 97A of the Evidence Act. The relevant part of s 97 is as follows (emphasis added):

3. [9]

   His Honour decided that the evidence could not be relied upon by the Crown because, in the terms of s 97(1)(b), he did not “[think] that the evidence [would] […] have significant probative value”. The ruling did not turn upon weighing probative value against danger of unfair prejudice, under s 101(2), s 135 or s 137, although the question of prejudice to the respondent was referred to briefly at [71] of his Honour’s reasons.

4. [10]

   The Director referred the Court to authorities that are said to diverge on the question of whether, on an interlocutory appeal such as this, the Court must apply a correctness test – that is, decide for itself definitively whether the tendency evidence has significant probative value, on the basis that the criterion in s 97(1)(b) “demands a unique outcome” and that this Court must determine that outcome. The expression “demands a unique outcome” is Gageler J’s: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [48]. The alternative possibility is that the threshold test in s 97(1)(b) “tolerates a range of outcomes, in which case the House v The King standard applies” (SZVFW at [48], citing House v The King (1936) 55 CLR 499; [1936] HCA 40). Under that alternative the Court would confine its attention to whether the learned judge considered relevant principles and facts and whether his ruling was therefore open to him; if so, the appeal would be dismissed although the Court might have ruled differently.

5. [11]

   In DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [100] Allsop P considered it significant that the test in s 97(1)(b) is framed in terms of what the trial judge “thinks” about significant probative value, rather than in terms of definite ascertainment of that quality. DAO v R was an interlocutory appeal from a refusal to sever an indictment, which turned upon the admissibility of tendency evidence. Allsop P concluded that the trial judge’s decision was to be reviewed according to the House v The King standard. Simpson, Kirby and Schmidt JJ took the same view.

6. [12]

   In The Queen v Bauer [2018] HCA 40 the High Court held as follows:

7. [13]

   The Queen v Bauer was a conviction appeal rather than an interlocutory appeal from a ruling on evidence before trial. Nevertheless, in R v Riley [2020] NSWCCA 283 at [101] Bathurst CJ said that the High Court had held the approach taken in DAO v R was incorrect and did not qualify that view by reference to the stage at which the appeals had been brought in the two cases respectively. Notwithstanding that the procedural context of an appeal may have a bearing upon whether the correctness test or the House v The King standard is to be applied, it would make little sense for the latter to be adopted on a s 5F appeal concerning “significant probative value” of tendency evidence, given that the correctness test would be applied in the event of a conviction appeal. An accused person may bring an appeal under s 5F against a decision permitting the Crown to adduce tendency evidence. If the House v The King standard were to be applied in such an appeal and if the ruling were to be upheld, a subsequent conviction appeal might succeed on the correctness test. That would be chaotic, a consideration tending to support the view that the same basis of review must be applied in an appeal of either kind, namely, as held in The Queen v Bauer at [40].

8. [14]

   The Director submits that, for the purposes of the s 5F appeal now before the Court, even if the House v The King standard should be applied, the Court would find that the learned judge misapprehended the interpretation and application of s 97A of the Evidence Act and that the Court must determine the issue of admissibility afresh, exercising jurisdiction pursuant to sub-s (5) of s 5F of the Criminal Appeal Act. Subsection (5) is as follows:

Interaction of ss 97 and 97A of the Evidence Act

1. [15]

   As explained by Kiefel CJ, Bell, Keane and Edelman JJ in Hughes v The Queen [2017] HCA 20 at [40], the probative value of putative tendency evidence has two aspects:

2. [16]

   Section 97A of the Evidence Act was introduced with effect from 1 October 2020 and is applicable in the prosecution of the respondent by force of sub-s (1). For the purpose of determining whether the criterion of “significant probative value” in s 97(1)(b) is satisfied in a child sexual offence case, s 97A creates a rebuttable presumption that that threshold is met for any tendency of the kinds described in sub-s (2) of s 97A. Section 97A is in the following terms:

3. [17]

   Contemporaneously with the introduction of s 97A, s 101(2) was amended by deleting the test of whether “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant” and rewording the subsection as follows (emphasis added):

The putative evidence of tendency (ii)

1. [18]

   The passages from the police interviews that the Crown wishes to rely on for the tendency purpose, as part of its case on all 13 counts, are summarised in the following paragraphs.

2. [19]

   LB told police that the respondent first engaged in sexual conduct towards him on a date that LB could fix only by reference to other events. Other evidence would show that this must have been when LB was about seven years old. The respondent was babysitting LB and his two younger siblings at the respondent’s house. He called LB into his bedroom, where he was lying naked on his bed. [Count 1, act of indecency, s 61O(1) of the Crimes Act].

3. [20]

   On the same occasion, upon seeing the respondent naked LB walked out of the bedroom. The respondent called him back and directed him by words and gestures to suck the respondent’s penis, which LB did. [Count 2, aggravated sexual intercourse with a child under 10, s 66A(2)].

4. [21]

   LB said that on a subsequent occasion the respondent came to LB’s family home for a barbecue. He stayed overnight, sleeping in KB’s room. In the middle of the night he entered LB’s bedroom and fellated him. This occurred within approximately 18 months before the interview, when LB was 14-16 years old. [Count 3, aggravated sexual intercourse with a child aged between 14 and 16 years, s 66C(4)].

5. [22]

   On an occasion between about mid-2020 and 26 June 2021 LB and his younger siblings were at the respondent’s house using his swimming pool. LB left the pool and went into the house. He entered the respondent’s bedroom and the respondent asked him to put his penis in the respondent’s behind. LB did this. [Count 4, aggravated sexual intercourse with a child aged between 14 and 16 years, s 66C(4)].

6. [23]

   In about early August 2021 LB and his younger siblings stayed at the respondent’s house to be minded by him while their father was out of town and their mother had work commitments. LB slept in the lounge room. In the early hours of the morning the respondent called him into his bedroom and invited LB to suck the respondent’s penis, which he did. [Count 5, aggravated sexual intercourse with a child aged between 14 and 16 years, s 66C(4)].

7. [24]

   On the same occasion as count 5 the respondent told LB that he wanted to “switch positions”. LB then lay on top of the respondent, top to toe, with the respondent’s penis in LB’s mouth (count 6) and LB’s penis in the respondent’s mouth (count 7). [Counts 6 and 7, aggravated sexual intercourse with a child aged between 14 and 16 years, s 66C(4)].

8. [25]

   On the same occasion as counts 5-7 the respondent asked LB if he could try to put his penis in LB’s bottom. The respondent attempted to do that, four or five times, unsuccessfully. [Count 8, aggravated sexual intercourse with a child aged between 14 and 16 years, s 66C(4); alternate count 9, assault with intent to commit the offence, s 66D].

9. [26]

   LB said that on the same occasion as counts 5-9 the respondent asked LB to put his penis in the respondent’s bottom. LB did so. [Count 10, aggravated sexual intercourse with a child aged between 14 and 16 years, s 66C(4)].

10. [27]

    KB said that on an occasion when he stayed at the respondent’s home he showered in the respondent’s ensuite bathroom and then walked into his bedroom. The respondent then squeezed his bottom and penis on the outside of his clothes. KB was aged 13 years. He said, “Uncle Brett” and pushed his hand away. [Count 11, sexual touching of a child aged between 10 and 16 years, s 66DB(a)].

11. [28]

    KB said that on multiple occasions at one of the houses the respondent occupied and on one occasion at his subsequent residence, the respondent squeezed KB’s buttocks on the outside of his clothing.

12. [29]

    BB said that in late August 2021, when she was aged 11 years, she visited the respondent’s house. While BB was watching the respondent’s daughter play the piano, the respondent rubbed his hand up and down her thighs. She told him to stop and pushed his hand away, to which he responded by tickling her on the stomach. [Count 12, sexual touching of a child aged between 10 and 16 years, s 66DB(a)].

13. [30]

    BB said that on a morning in about early August 2021, after she had slept over at the respondent’s house, he “slid his hand across [her] breasts” as she passed him walking out of a bedroom. [Count 13, sexual touching of a child aged between 10 and 16 years, s 66DB(a)].

14. [31]

    BB said that on numerous other occasions over the 2 to 3 years preceding the date of her interview the respondent had touched her on the thighs, bottom and breasts, always on the outside of her clothing. On one occasion while she was staying at his house he rubbed his legs against her when she was getting ready for bed.

The primary judge’s decision

1. [32]

   At [63]-[64] of his reasons the learned judge referred to s 97A and recognised that, in general, it gives rise to a rebuttable presumption of significant probative value, for the purposes of s 97(1)(b), in relation to tendency evidence of either of the kinds described in sub-s (2) of s 97A. His Honour made the following observation, with which we agree:

2. [33]

   At [65]-[67] his Honour referred to The Queen v Bauer in terms that do not appear to have been part of the analysis that ultimately informed his decision. His Honour’s dispositive reasoning is contained in paragraphs [68]-[71], which are more readily appreciated when read with [60]:

3. [34]

   Paragraphs [60] and [68]-[69] contain his Honour’s reasons for concluding, under sub-s(4) of s 97A, that the Crown’s proposed tendency evidence lacks significant probative value, in rebuttal of the presumption in sub-s (2). The reasoning is based upon considerations that fall directly within par (a) of sub-s (5) of s 97A and, less obviously but nevertheless substantively, within pars (b) and (f). With respect, his Honour was in error to have relied upon those considerations without having first determined whether there are “exceptional circumstances” that would warrant taking them into account, as required by s 97A(5). His Honour gave no reasoned justification for the statement at the end of [69] that “this is not a matter caught by s 97A(5)”. We do not consider that statement to be supportable in the circumstances of this case.

4. [35]

   In par [70] his Honour addressed the position on the assumption, contrary to his own view, that s 97A(5) is engaged. However, the reasoning his Honour then applied is circular. Paragraphs (a)-(f) of sub-s (5) are potential points of comparison between the “tendency sexual acts” and the “alleged sexual acts” (as those terms are used in sub-s (5)(a)). The question raised by sub-s (5) is whether there exist “exceptional circumstances” that would warrant taking all or any of those points of comparison into account in assessing “significant probative value” of the “tendency sexual acts”. The purported “exceptional circumstances” nominated by his Honour at [70] are merely three of the very points of comparison whose utilisation is in question, namely, pars (a), (b) and (f) of sub-s (5).

5. [36]

   Those matters will not suffice as “exceptional circumstances” to disengage sub-s (5). For that purpose a court would have to find something beyond a mere difference between the “tendency sexual acts” and the “alleged sexual acts” (par (a)), or a mere difference in circumstances in which the “tendency sexual acts” and the “alleged sexual acts” occurred (par (b)), or a mere absence of shared distinctive or unusual features (par (f)). Either the court would have to find one or more of those features, or some other feature listed in sub-s (5), present in an exceptional degree, or some other exceptional circumstance different altogether from anything in pars (a)-(f). The legislature has provided no guidance as to the criteria by which “exceptional circumstances” might be discerned. It is sufficient for the determination of this appeal to say that, in order to be “exceptional”, the circumstances must be more than just sufficient to enliven some of the points of comparison in pars (a)-(f).

6. [37]

   Undoubtedly s 97A effects a very significant departure from the previous state of the law. The features described in pars (a)-(f) of sub-s (5), which the courts are now forbidden from taking into account in the assessment of whether putative tendency evidence has significant probative value, comprise substantially all of the criteria that, under the pre-existing law, were regarded as the basis in logic and common sense for comparing the sexual acts said to prove the tendency with the sexual acts charged.

7. [38]

   It is clear from the language of s 97A that Parliament intended by enactment of this section that evidence that an accused person has exhibited a sexual interest in children, or has acted on such a sexual interest, should be deemed probative of any child sexual offence with which the person may be charged, in a very broad field of circumstances. Parliament also clearly intended that the courts should be constrained not even to consider countervailing indicia, tending against a conclusion of significant probative value, in any but exceptional circumstances. Those manifest intentions are reinforced by the Attorney General’s second reading speech upon introduction of the Bill for the amendment.

8. [39]

   We accept the Director’s submission that the question of admissibility of evidence to establish tendency (ii) must be redetermined by this Court under s 5F(5) of the Criminal Appeal Act, whichever standard of review should be considered applicable. His Honour erred in principle by failing to apply correctly the relevant legislation. Therefore, if the House v The King standard should be applied, the Court must make its own determination of whether the Crown’s putative tendency evidence “does not have significant probative value” pursuant to s 97A(4) of the Evidence Act. If the appeal is to be determined upon application of the correctness test, then, again, the Court must form its own view under s 97A(4). We also accept that the exclusion of the evidence of KB and BB as tendency evidence on counts 1-10 concerning LB substantially weakens the Crown’s case on those counts because it deprives the Crown of the only evidence independent of LB that would be capable of supporting his allegations. Accordingly, the precondition to allowing the Director’s appeal, as prescribed in sub-s 3A of s 5F, is satisfied.

9. [40]

   We do not find any circumstances of the case that would justify the characterisation of “exceptional”, thereby to permit consideration of the factors in s 97A(5)(a)-(f). Neither the degree to which some of those factors are exhibited in the evidence nor any other circumstance outside the range of those matters could be said to be exceptional. Hence, in its determination of whether the proposed tendency evidence lacks significant probative value, the Court is denied consideration of, or the opportunity to evaluate and weigh, any of the matters that could inform a reasoned finding, one way or the other, about significant probative value. Accordingly, the presumption in sub-s (2) of s 97A is not rebutted.

10. [41]

    However, in so far as the evidence of LB would be relied upon to establish tendency (ii) and would for that purpose be tendered in proof of counts 11-13 concerning KB and BB, we consider that the probative value of that evidence on those counts would be outweighed by the danger of unfair prejudice to the respondent. Therefore, applying s 101(2) of the Evidence Act, LB’s evidence cannot be used in proof of the three counts in which KB and BB are the complainants. Those matters must be tried separately from counts 1-10. The evidence of KB and BB in support of tendency (ii) would not give rise to a danger of unfair prejudice to the respondent if that evidence should be adduced in his trial on counts 1-10. KB and BB may be called as witnesses in such a trial, to give the evidence summarised above from their respective police interviews.

11. [42]

    Our conclusion under s 101(2) rests upon there being a high degree of danger of unfairness to the respondent, rather than a low degree of probative value in LB’s evidence of tendency in so far as it would be led on counts 11-13. Having regard to the statutory deeming of “significant probative value” under s 97A(2), it is difficult to see how the Court could ever evaluate the probative value side of the equation for the purposes of s 101(2). In this appeal the balancing exercise leads to exclusion because it is highly likely that LB’s evidence, if accepted, would cause the jury to feel strong revulsion against the respondent as a man who would engage a child in adult sexual activity as LB describes. It would be difficult for many jurors to contain the emotional responses that this evidence would be likely to evoke. Counts 11-13, as alleged, were of much less gravity than the matters described by LB. Depending upon the quality of KB’s and BB’s evidence, jurors may be left with a reasonable doubt about the accuracy of their recall concerning the respondent’s acts towards themselves. In the nature of those charges, under s 66DB(a), reasonable doubt concerning even minor details of the touching may lead to doubt about whether it was sexual and, hence, doubt about whether the offences are proved. There is at least a substantial danger that those issues could not be tried fairly to the respondent in a proceeding in which LB would give confronting evidence, for tendency purposes, only, on counts 11-13, that the respondent subjected him to most egregious sexual abuse.

12. [43]

    In the trial of the respondent on counts 12 and 13 there would be no significant danger of unfair prejudice if the evidence of KB should be tendered in proof of tendency (ii). Similarly, in his trial on count 11 there would be no significant danger of unfair prejudice if BB’s evidence should be adduced in proof of that tendency. Evidence of the acts constituting each of those three counts would be cross admissible for tendency purposes and not amenable to exclusion under s 101(2). A trial of the respondent on counts 11-13 could therefore take place on the one indictment.

Orders

1. [44]

   For these reasons the orders of the Court are as follows:

   1. (1)

      Allow the appeal.

   2. (2)

      Set aside the order of the District Court made on 24 February 2023 refusing the Crown’s application to rely upon the evidence specified in items 1-3 and 8-9 of its notice under s 97 of the Evidence Act 1995 dated 21 October 2022, to prove the tendency in paragraph 2(ii) of that notice in the prosecution of the respondent on the charges in the indictment against him dated 31 May 2022.

   3. (3)

      Order that in the prosecution of the respondent on counts 1-10 inclusive in the said indictment, wherein the complainant is the person known as LB, the Crown may rely upon the evidence specified in items 1-3 and 8-9 of the notice to prove the tendency in paragraph 2(ii).

   4. (4)

      Order that the in the prosecution of the respondent on counts 11-13 in the said indictment, wherein the complainants are the persons known as KB and BB, the Crown may not rely upon the evidence specified in items 1-3 of the notice but may rely upon the evidence specified in items 8 and 9 to prove the tendency in paragraph 2(ii).