Crawford v R

BEECH-JONES CJ AT CL: I agree with Adamson J.

DAVIES J: I have read in draft the reasons of Adamson J for joining in the Court’s refusal of leave pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). Those reasons accord with my own for joining in the Court’s order.

ADAMSON J: Peter Crawford (the applicant) stands charged on an indictment of seventeen counts of sexual offences under Part 3, Division 10 of the Crimes Act 1900 (NSW). In all but one of which (count 3), the complainant is a female aged under sixteen years. The applicant’s trial before Shead SC DCJ (the trial judge) and a jury is listed for hearing to commence on 6 February 2023. Of the seventeen counts, four (counts 1-4) relate to offences alleged to have been committed by the applicant while he was an acolyte in a church towards females (LL and KC) who assisted him in the church (the church counts). The remaining 13 counts relate to offences alleged to have been committed by the applicant on females (IS, JSD and JDD) while he was coaching netball (the netball counts).

The Crown served an amended tendency notice dated 6 July 2022 in which, in substance, it contended that, except in relation to count 3 (which charged an offence against LL when she was 19 years old), the evidence in respect of each complainant was cross-admissible in respect of charges against each other complainant and that the evidence in respect of each count, including count 3, was cross-admissible in respect of each other count with respect to that complainant.

The notice identified the tendency and the alleged common features as follows:

The applicant applied for the netball counts to be tried separately from the church counts. He argued that the evidence of the netball counts was inadmissible on the church counts and vice versa.

On 26 August 2022, the trial judge made the following orders and ruling (as expressed in her reasons):

By notice of appeal filed on 9 December 2022, the applicant sought leave under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal against the trial judge’s refusal of his application for separate trials. The basis of the application was the contention that the trial judge incorrectly held that the evidence of the netball counts and church counts was cross-admissible (with the qualification that the trial judge found that the evidence of count 3 was only admissible with respect to counts 1 and 2, being against the same complainant, LL).

At the conclusion of the hearing of the application on 3 February 2023, the Court ordered that leave to appeal be refused. What follows are my reasons for joining in this order of the Court.

Before addressing the substance of the applicant’s submissions in light of the trial judge’s ruling, it is helpful to set out the Crown case on each of the counts (which has largely been derived from the summary in the Crown’s written submissions to this Court).

The Crown case on the church counts is summarised in the table below.

LL reported the conduct to Father Kwak in about December 2020, when she learned that the applicant had been arrested and charged with the netball counts. KC reported the conduct to Father Kwak in January 2021.

The Crown case on the netball counts is summarised in the table below.

References to legislation in these reasons are references to the Evidence Act 1995 (NSW) (the Act), unless otherwise stated.

Section 97 of the Act relevantly provides:

It was common ground that s 97A of the Act applied in the present case as the complainants were (with the exception of count 3) children, being persons under 18 years of age and the offences charged are “child sexual offences”. Section 97A of the Act relevantly provides:

Section 101(2) of the Act relevantly provides that tendency evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.

The applicant submitted to the trial judge (and to this Court) that there would be unfair prejudice to him arising from an alleged tendency “across five complainants, compounded with inter count cross-admissibility as pleaded, engaging vertical (intra complainant) and horizontal (inter complainant) pleading, would be such as to produce, in the mind of a single jury, unfair prejudice, which would not be susceptible of cure by direction.”

Before the trial judge, the applicant limited his objection to the evidence to the question of prejudice (which arises under s 101) and did not address ss 97 or 97A of the Act. In other words, the applicant did not contend that the evidence did not have substantial probative value.

Section 21 of the Criminal Procedure Act relevantly provides:

Section 29 of the Criminal Procedure Act relevantly provides:

Section 29A of the Criminal Procedure Act provides:

Her Honour noted that (as referred to above) the applicant did not make submissions directed to s 97A (presumed substantial probative value) and that he relied on s 101.

Her Honour considered that the evidence had probative value not only as to tendency to have, and to act on, a sexual interest in girls under 16 years, but also (at [131]) to rebut a potentially innocent explanation for the alleged conduct (such as that the complainants had misinterpreted physical contact or fabricated the allegations). Her Honour found that the presumption in s 97A of the Act had not been rebutted and did not consider that there were exceptional circumstances which warranted taking the matters in s 97A(5) into account. Her Honour further found that, even without the presumption in s 97A, the evidence had substantial probative value within the meaning of s 97.

Her Honour addressed the conduct and the connections between the conduct alleged before turning to s 101 and the risk of unfair prejudice. Her Honour applied the test in s 101 and said, of present relevance:

Her Honour also found that the evidence in support of count 3 was relevant to counts 1 and 2 because of its similarity and that it concerned the same complainant, LL, although LL was 19 years of age at the time of the alleged conduct comprising count 3.

Her Honour found, at [149], that the indictment was not “oppressive” and the applicant was not prejudiced by the number of charges or complainants “in the sense contemplated by s 21 of the Criminal Procedure Act.”

Her Honour concluded as follows:

The decision to refuse to order separate trials is an interlocutory order which is amenable to appeal under s 5F(3)(a) of the Criminal Appeal Act. However, an evidentiary ruling is not: see the summary of authorities referred to in DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 (DAO) at [74] (Allsop P). This Court has repeatedly emphasised that restraint ought be exercised before granting leave to appeal against the refusal of a separate trial where the basis of the application is an evidentiary ruling. The reason for the restraint to be exercised pre-trial (and therefore, necessarily, pre-conviction) appears from the following passage in Spigelman CJ’s judgment in DAO:

Schmidt J, at [212] of DAO also said, of present relevance:

Dr Webb SC, who appeared on behalf of the applicant in the Court below and in this Court sought, in this Court, to contend that the presumption in s 97A that the evidence will have “significant probative value” did not carry over to the exercise required by s 101(2) of the Act. However, he confirmed (as is evident from the transcript and written submissions) that no such submission had been made to the trial judge. Indeed no submissions had been made to the trial judge regarding the construction and effect of s 97A of the Act.

As the trial judge assessed the anticipated evidence as having significant probative value under s 97 of the Act (quite apart from the presumption that it did in s 97A), the submission referred to above by Dr Webb does not arise. In these circumstances, the present application is not an appropriate occasion for this Court to address the construction of s 97A. It is a novel provision, the construction of which has not yet arisen for consideration by this Court.

As referred to above, and confirmed by Dr Webb at the hearing in this Court, the principal basis of the application is that the trial judge erred in ruling the evidence to be cross-admissible on the basis of tendency (this being the basis for the refusal to order separate trials). The applicant has repeated in this Court his argument that the probative value of the evidence does not outweigh the danger of unfair prejudice to the defendant.

I discern no error in the trial judge’s approach, her Honour’s reasons or in the rulings. The number of charges is, in this context, by no means unusual, much less excessive. The probative value of the evidence (both to positively establish the alleged tendency and to exclude innocent explanations) is, as her Honour found, very high. The risk of unfairness (if there be any) can be ameliorated, as her Honour found, by directions. There is no reason to suppose that these directions will be unduly complex or difficult to formulate: see, for example, JS v R [2022] NSWCCA 145 at [50] (Basten AJA, Hamill and Dhanji JJ agreeing).

I note that Dr Webb confirmed, orally in this Court, that there was no issue that the offences on the indictment formed “part of a series of offences of the same or similar character” within the meaning of s 29(1)(c) of the Criminal Procedure Act.

It was also open to her Honour to accept that the applicant was not “prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment” (s 21(2)(a) of the Criminal Procedure Act) and that there was “no other reason” to order that the accused be separately tried for the church counts and the netball counts (s 21(2)(b) of the Criminal Procedure Act).

For the reasons explained in the passages set out above, if this Court refuses leave, the applicant’s rights to appeal against any potential conviction on the basis that the evidence of the netball counts was not admissible with respect to the church counts, or vice versa, are preserved.

In so far as it is appropriate for me to express a view as to the admissibility of the evidence in the course of an application for leave, I consider the anticipated evidence (as outlined in the witness statements before the trial judge and this Court) to be admissible.

For the reasons given above, it is appropriate for this Court to exercise restraint in relation to applications for leave to appeal against interlocutory orders where such orders are based on evidentiary rulings. Further, the applicant’s challenge to the trial judge’s ruling lacks merit.

There is an additional reason why leave ought not be granted. The trial judge made the relevant orders, including refusing the application for separate trials, on 26 August 2022. Although both the applicant and the Crown requested her Honour’s reasons, the trial judge was not informed that the applicant intended to apply for leave to appeal pursuant to s 5F of the Criminal Appeal Act. Absent being notified of another purpose, her Honour was entitled to assume that the parties merely wanted reasons to be provided before the commencement of the trial.

The present application for leave was not filed until 8 December 2022, just over a week prior to the commencement of the court vacation. When the application was filed, her Honour had not yet provided reasons for the order. Had the applicant notified her Honour of the need to provide reasons for the purposes of the present application, such reasons could have been provided such that the application could have been heard well before the trial was due to commence. Her Honour was informed of the application on 27 January 2023 and provided reasons on 30 January 2023. It can be inferred that, had her Honour appreciated the need for reasons earlier, her Honour would have provided them earlier.

As referred to above, the trial is listed to commence on 6 February 2023. The application was listed as soon as practicable after being filed (but could not be listed until the reasons were available). Thus, the application has been heard on the Friday (3 February 2023) before the trial is due to start the following Monday (6 February 2023).

It is important that trial dates not be upset by late applications for leave to appeal. Even if there had been merit in the application, I would have been disposed to refuse leave to appeal since, for the reasons given above, the applicant’s rights, if convicted, are protected and it is preferable that trials are not vacated without good reason.

For the reasons given above, I joined in the following order which was made at the conclusion of the hearing on 3 February 2023: