Director of Public Prosecutions (NSW) v RDT

1. [1]

   BASTEN JA: On 10 September 2018 the Director of Public Prosecutions (NSW) presented an indictment in the District Court charging the present respondent with three counts involving sexual intercourse with a child under 10 years of age and one count involving an act of indecency with a child under 10 years of age. The child in each of the charges was the respondent’s daughter, being a young girl aged between 3 and 5 years at the time of the alleged offending.

2. [2]

   Prior to the commencement of the trial, the prosecutor had served a tendency notice relying on material extraneous to the charged offences to establish that the accused had a “sexual interest in pre-pubescent children, including pre-school age children” and a tendency to act upon that interest by “sexually or indecently assault[ing] very young children (as young as under 5), including those to whom he has a close familial relationship”, and procuring or attempting to procure “children of a very young age for [the purpose of sexual activity] in circumstances where he does not have direct access to a child of the desired age.” At the commencement of the hearing, the trial judge rejected the application to adduce the proposed tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW). The Director appealed from that ruling pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW). The notice of appeal identified the relevant ground of appeal in the broadest terms, namely that the trial judge had “erred in excluding the tendency evidence”.

3. [3]

   Before addressing the substance of the errors identified in the course of written and oral submissions, it is necessary to address the nature of the appeal to this Court.

Nature of appellate function

1. [4]

   Different views have been expressed as to the nature of the Court’s function in determining an appeal from a ruling on the admissibility of evidence. The two competing positions are identified in conventional terms by reference to the High Court judgments in Warren v Coombes [1] and House v The King [2] respectively. The standard identified in Warren v Coombes, applicable to a civil appeal by way of rehearing, included the following passage: [3]

2. [5]

   By contrast, in House v The King the High Court stated: [4]

3. [6]

   The principle in Warren v Coombes was stated in relation to an appeal from a final judgment in civil proceedings; the standard identified in House v The King also related to a final judgment, but one involving the imposition of a sentence in a criminal matter. The present case does not involve a final judgment, but a preliminary determination of the admissibility of evidence made by a trial judge before the commencement of the trial.

4. [7]

   These points of distinction are important because appellate courts exercise degrees of restraint, or intensity of review, depending upon different aspects of the proceedings before them. All appeals being based in statute, one common form of restraint is the imposition by the legislature of a requirement to obtain leave, that is permission of the court, to commence an appeal. In relation to interlocutory appeals in criminal trials on indictment, s 5F of the Criminal Appeal Act confers a right of appeal on the Attorney General and the Director of Public Prosecutions, but requires leave for a proposed appeal by any other party: s 5F(2) and (3). In the present case, the right conferred by s 5F with respect to a ruling on the admissibility of evidence was conditioned upon the ruling being one which “eliminates or substantially weakens the prosecution’s case”: s 5F(3A).

5. [8]

   In civil matters, restraint is exercised with respect to interlocutory appeals involving issues of practice and procedure, partly for pragmatic reasons identified in well-known authorities, such as In Re the Will of Gilbert. [5] Such considerations can readily be justified in circumstances where the legislature has imposed a leave requirement and, further, requires a court to apply in civil proceedings the overriding purpose identified in Pt 6 of the Civil Procedure Act 2005 (NSW), “to facilitate the just, quick and cheap resolution of the real issues in the proceedings.” [6] In the criminal jurisdiction different considerations arise. However, both in civil and criminal cases, different approaches will be taken depending upon whether the interlocutory judgment has the practical effect of ending the proceedings, or affecting the scope of the issues which may be raised and whether it is a decision which can be reviewed in the course of a trial.

6. [9]

   It should be accepted that the rejection of the tendency evidence substantially weakened the prosecution’s case and the prosecutor’s right of appeal was therefore engaged; the question remains as to whether the nature of the appeal against the preliminary judgment allowed the same standard or intensity of review as required in relation to an appeal from a final judgment. In the criminal jurisdiction, issues as to the admissibility of evidence will usually be dealt with on an appeal against conviction. However, in a practical sense, final judgments are no more of a single kind than are preliminary or interlocutory judgments. For example, the grounds upon which a jury verdict can be reviewed are more limited than those upon which the judgment in a judge-only trial can be reviewed; the reasoning of a jury is opaque, whereas a judge is required to give reasons and the decision-making process should be transparent. Further, some judgments will depend, as Warren v Coombes recognised, on an assessment of oral testimony as to which the appellate court is limited to the review of a transcript. Assessment of error is more accessible where the appeal turns on the review of documentary material or questions of law.

7. [10]

   Until recently, the standard of review to be adopted by this Court in relation to an appeal by an accused from a preliminary ruling as to the admissibility of tendency evidence was identified in DAO v The Queen. [7] That appeal, heard by a five-judge bench, was decided in April 2011. Spigelman CJ concluded:

8. [11]

   In KJM v The Queen (No 2), [10] decided some five months after DAO, a five-judge bench of the Victorian Court of Appeal determined that it should follow DAO, albeit with respect to an appeal from interlocutory decisions under the Criminal Procedure Act 2009 (Vic), s 295, the terminology of which differed in some respects from s 5F.

9. [12]

   The question whether these decisions should be followed arises from a passage in the definitive judgment of the Full High Court dealing with tendency evidence, R v Bauer (a pseudonym). [11] The case involved an appeal from a decision of the Victorian Court of Appeal overturning convictions of an accused on 18 charges of sexual offences committed against a girl. The prosecutor appealed that judgment.

10. [13]

    In upholding the appeal, the High Court stated:

11. [14]

    In dealing with the probative value of the tendency evidence of a complainant, the Court stated:

12. [15]

    This reasoning reflects the explanation of the different criteria engaging different standards of, or intensity of, review identified by Gageler J in Minister for Immigration and Border Protection v SZVFW: [13]

13. [16]

    The difference is between a determination involving a binary choice (the evidence is either admissible or it is not) and a decision on a spectrum where the law tolerates a range of possible outcomes (such as the selection of a point within a permissible range for a sentence). The statement in Bauer that the question whether tendency evidence has significant probative value is one to which “there can only ever be one correct answer” reflects the “legal criterion” which demands “a unique outcome, in which the correctness standard applies”.

14. [17]

    If Bauer is applicable to an appeal from a preliminary judgment under s 5F of the Criminal Appeal Act, it is necessary for this Court to determine for itself whether the tendency evidence was admissible or inadmissible. There are two broad reasons (namely, authority and principle) which indicate that the correctness standard should apply.

15. [18]

    So far as authority is concerned, it is significant that the footnote to [61] in Bauer referred to two passages in the judgment of Campbell JA in R v Ford [15] addressing the standard of review for appellate review of decisions about tendency evidence. Campbell JA adopted the same position, at [98] and [124] in Ford, as did the High Court in Bauer. Ford, however, was an appeal pursuant to s 5F(3A), a factor which Campbell JA expressly addressed at [98]. The reference to Ford in Bauer also included the more guarded expression of opinion by Howie J at [145]-[146], a passage focused explicitly upon the power conferred under s 5F. Although it may be said to be obiter, and there is a degree of ambiguity in the note, “see and compare McCartney v The Queen (2012) 38 VR 1 at [31]-[51]” (referred to below), it appears that the Full High Court in Bauer saw no reason to distinguish between the review of a judgment as to the probative value of tendency evidence on an appeal against a conviction and on an appeal from a preliminary judgment as to admissibility. [16] If that is correct, it is not open to this Court to ignore that authority.

16. [19]

    Although addressing the question from the opposite standpoint in DAO, namely whether the principles established with respect to an appeal from a preliminary judgment would apply to a conviction appeal, Spigelman CJ (Kirby J agreeing) expressed the opinion that “there is a substantial difference between a s 5F appeal and an appeal from conviction in relevant respects”, noting, however, that it was not necessary to determine the position with respect to an appeal after conviction. [17] Simpson J (Schmidt J agreeing) expressly disagreed with that approach; [18] Allsop P did not address this issue.

17. [20]

    The Victorian Court of Appeal revisited this issue in 2012 in McCartney v The Queen. [19] Having noted the approach taken with respect to interlocutory appeals from preliminary rulings on the admissibility of evidence in DAO and KJM, the Court continued:

18. [21]

    While it is true that the material to be considered will vary depending upon whether the appeal is brought before or after the trial, it is not clear why the standard of review should vary. Acceptance that “the legal character of a decision” under whichever provision of the Evidence Act is engaged remains the same whenever the decision falls to be reviewed, suggests that the standard of review should not vary. The conclusion that it does vary would appear to be inconsistent with the approach adopted by the High Court in the passages set out above.

19. [22]

    As a matter of principle, that correctness approach is justified. It is no doubt true that post-conviction, the assessment as to admissibility will proceed upon a different evidential basis, than at the stage of the preliminary ruling. That is because witnesses may not give evidence precisely in the terms anticipated by the prosecutor, or may qualify their evidence in cross-examination, and the evidence will need to be assessed contextually having regard to other evidence. But it is not clear why the legal standard of review should vary.

20. [23]

    An argument for a lower standard of scrutiny in relation to a preliminary decision is that, if the evidence is admitted, but later turns out not to have the significant probative value which was anticipated, the decision to admit the evidence may be reconsidered and may be reviewed on an appeal following conviction. Thus a lower level of scrutiny is appropriate with respect to preliminary rulings because they are not final. Whatever weight that argument may have in a case where evidence is admitted, it is not engaged if the evidence is rejected. In that circumstance, it is difficult to see why the decision of the trial judge, being a binary choice, should not be reviewed on the basis which generally applies in such circumstances.

21. [24]

    Accordingly, as a matter of both authority and principle, this Court should review the decision of the trial judge to reject the tendency evidence according to a correctness standard.

The evidence and the judgment

1. [25]

   The events the subject of the charges against the respondent were committed between 2006 and 2008. The conduct the subject of the application to admit tendency evidence occurred in 2015. In broad terms, the other conduct demonstrated an interest in gaining access to toddlers in nappies and pre-pubescent girls for sexual activity. The respondent also sent a photograph of a young girl in underwear, said by the trial judge to appear to be between two and four years with the respondent stating “Heres my ideal age though.” The detail of the tendency evidence now relied on by the Director is set out in the schedule to these reasons.

2. [26]

   This conduct led to the arrest of the respondent in October 2015. He participated in a record of interview in which he admitted that he had had a sexual interest in young children for some 20 years. The prosecution sought to admit this material on the basis that it demonstrated a sexual interest in very young female children, together with a willingness to make attempts to obtain access to a young baby for sexual purposes. The prosecution contended that such material would provide powerful support for what might otherwise seem to be implausible allegations that a man of mature years would interfere sexually with his own child under the age of five years.

Consideration of grounds

1. [27]

   On the appeal, the Director focused upon three interrelated errors, namely:

2. [28]

   The first ground did not fully state the basis of the challenge to the legal principles applied by the trial judge. In the course of submissions before the trial judge reference had been made to the decision of this Court in McPhillamy v The Queen. [22] The judge noted that special leave to appeal had been granted on 20 April 2018 and the appeal heard on 9 August 2018. Orders made at the hearing of the appeal, approximately four weeks before the ruling in this case, resulted in the appeal being allowed and the orders of this Court in McPhillamy being set aside. Reasons were not then published and were not available to the trial judge. However, the judge stated that, having read the transcript of argument in the High Court, he considered that “the reasons for the dissenting judgment of Meagher JA [had] been accepted entirely, including matters which earlier decisions of the High Court in Hughes v The Queen [23] did not [determine?] in respect of s 101(2) Evidence Act.”

3. [29]

   As counsel for the Director submitted, this approach was wrong both in principle and having regard to the circumstances of the present case. Further, the judge may have misapprehended the fact that Meagher JA did not resolve the matter on the basis of the operation of s 101(2) of the Evidence Act 1995 (NSW) (that is a balancing exercise), but rather on the basis that the requirement in s 97(1) that the evidence have “significant probative value” was not satisfied. [24]

4. [30]

   More importantly, the correct approach to the orders made by the High Court was not to seek to divine from the transcript the reasons which the Court would ultimately give in delivering judgment, nor to assume that the dissenting judgment in this Court was correct, but rather simply to disregard McPhillamy in this Court as authority for a legal principle. On that approach, the judge should have applied the principles in earlier High Court authority, including Hughes v The Queen. [25]

5. [31]

   Most importantly for the materiality of the error, the judge was wrong to treat the reasoning in McPhillamy as determinative of the matter before him. This point can be explained by reference to the further reasoning of the trial judge.

6. [32]

   It appears that the judge rejected the evidence on three bases, namely that the proposed evidence (i) did not satisfy the test of relevance under s 55 of the Evidence Act, (ii) did not, in any event, have “significant probative value” under s 97 of the Evidence Act and (iii) if it did satisfy those tests, the prejudicial effect of the material would nevertheless outweigh the probative value for the purposes of s 101(2) of the Evidence Act.

7. [33]

   It is convenient to deal with the supposed relevance of the material and its probative value together. The problem in McPhillamy was that, to support charges involving masturbation with a schoolboy in a toilet, the prosecution sought to adduce evidence that some 10 years before the charged incidents, the accused had taken advantage of other schoolboys who had come to him for support. As is now understood from the reasons in McPhillamy v The Queen which have been delivered by the High Court, [26] the Court was willing to accept that proof of “sexual interest in young teenage boys may meet the basal test of relevance”. [27] The joint reasons noted that it was the “tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value.” [28] Thus, accepting that such a sexual interest may continue over a decade, the absence of any evidence of acting on that tendency during that lengthy period deprived the earlier events of their cogency in supporting the alleged later conduct.

8. [34]

   The present case involved a number of factors to which the trial judge did not refer. First, there is a qualitative difference between a man having a sexual interest in teenage boys, examples of which are replete throughout recorded history, and a mature male having an interest in female toddlers in nappies. Secondly, the temporal connection was supplied by the accused’s admission in the course of the record of interview that he had had such an interest “on and off for years”, by which he meant “Oh, 10, 15 years. 20 years.” This exchange with police in October 2015 was set out by the trial judge in his reasons but not otherwise addressed. Thirdly, in his evidence on the voir dire in the present matter, the respondent accepted that he had made the relevant admissions to police. Fourthly, the 2015 offending involved more than merely uncharged allegations; charges had been laid and the accused had entered guilty pleas to four significant charges.

9. [35]

   On this basis, it is apparent that the focus on the reasoning of the dissenting judge in McPhillamy led the trial judge into error. The approach adopted was not consistent with that applied in Hughes v The Queen where the joint judgment stated:

10. [36]

    The reasoning in particular cases will depend upon the nature of the alleged offending and the nature of the tendency evidence. Where the underlying propensity is accepted by the accused as operating over an extended period, its probative value is likely to be significant, even if the occasions upon which he acted upon the propensity were few and far between. The various factors set out above demonstrate that, in the present case, the tendency evidence had significant probative value.

11. [37]

    It remains to consider the operation of s 101(2) of the Evidence Act. This provision requires that the Court be affirmatively satisfied that “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.” The judge’s willingness to reject the evidence on this basis should be put to one side. First, having rejected the proposition that the evidence had significant probative value, it is difficult to know what hypothesis he was working on as to the extent of its probative value in balancing that value against the potential prejudicial effect.

12. [38]

    Secondly, he did not identify the precise prejudicial effect to be placed on the other side of the balance. He stated that he lacked confidence that any relevant direction to a jury would “outweigh the prejudicial effect”, apparently adopting the language of s 101(2) which is directed to another exercise. The importance of identifying the prejudicial effect in the present case was that it was quite likely that the conduct the subject of the charges would lead to revulsion on the part of the jury. It is necessary to consider how directions would operate in that context, before considering whether additional directions would be required with respect to the tendency evidence. Further, assuming that the further evidence was material and had significant probative value, the judge needed to explain why statements by the respondent providing graphic descriptions of what he wished to do to a toddler for his own sexual gratification might not be viewed as powerful probative evidence, rather than being regarded as prejudicial.

13. [39]

    In these circumstances, what the trial judge described as his “second finding”, namely that “the prejudicial effect, in any event, does substantially outweigh the probative value” should be put to one side. This Court must decide for itself whether, in the terms of the section, “the probative value of the evidence substantially outweighs any prejudicial effect”.

14. [40]

    There are a number of reasons for concluding that the tendency evidence proffered by the Crown has significant probative value. First, the issue is whether the accused in fact committed acts on his own daughter between the ages of three and five years involving digital penetration of her genitals for his own sexual gratification. Ordinary human experience suggests that such conduct is most unusual and far more unusual than conduct involving a homosexual interest in teenage boys or a heterosexual interest in girls over 10 years. Evidence which demonstrated that the respondent had such a proclivity, namely deriving sexual gratification from activity with very young children, would provide powerful support for the evidence of the complainant.

15. [41]

    While it is true that the respondent’s admissions and conduct in 2015 included fantasising about such activities and drawing some form of titillation from pictures of very young children, the activities were not so limited. They extended to active pursuit of opportunities to obtain access to such young children. While it is also true that there was a gap of some eight years between the alleged conduct with the complainant and the conduct which occurred in 2015, the accused’s own admission to having had such a sexual interest over that period renders the temporal gap largely immaterial.

16. [42]

    In my view the proposed tendency evidence had significant probative value.

17. [43]

    Applying the test under s 101(2), it is difficult to identify the prejudicial effect which should be ascribed to the tendency material. As already noted, the charges themselves may give rise to feelings of revulsion in a jury. Such circumstances routinely arise when juries are required to consider guilt of undoubtedly horrific offending. Such offending may well lead to a desire to punish the person charged without giving careful attention to the essential elements of the crime, including the identity of the offender. In this case, the possibility that the crimes occurred will be apt to lead some jurors to assume the worst without careful attention to satisfaction beyond reasonable doubt that the events occurred. These considerations will require firm directions from the judge in any event.

18. [44]

    Evidence that the accused has willingly expressed the satisfaction he gains from engaging in such activities, or at least thinking about them, would allow the jury to accept as reliable the allegations of the complainant. That permissible use of the material is not a form of prejudice. While the evidence will require directions to ensure it is not misused, so will the evidence of the complainant.

19. [45]

    Two further points should be noted. First, although the complainant’s account is derived from her statements and thus may not be adduced precisely as expected by the prosecution, the same uncertainty does not arise with respect to the tendency evidence, all of which is recorded in some form, and the general accuracy of which has already been accepted by the accused.

20. [46]

    Secondly, although of less importance given the last point, it is necessary for this Court to remind itself that it is not concerned with the reliability of the evidence, or the possible explanations which may be given by the accused. The trial judge noted that the accused had given evidence on the voir dire and said:

Conclusions

1. [47]

   For the reasons set out above, it is apparent that the trial judge led himself into error by applying the reasoning of the dissenting judge in this Court in McPhillamy, in circumstances where not only was that an incorrect approach as a matter of law, but the circumstances of the case bore little relationship to the circumstances in McPhillamy. Further, the judge failed to address the importance of the tendency evidence, if accepted by the jury, in bolstering the prosecution case.

2. [48]

   The rejection of the evidence satisfied the requirement that the ruling substantially weakened the prosecution’s case for the purposes of s 5F(3A) of the Criminal Appeal Act. That was because, properly understood, the evidence had significant probative value. Finally, the probative value of the evidence substantially outweighed any prejudicial effect that might flow from the prosecutor relying upon the evidence at trial.

3. [49]

   In written submissions in this Court counsel for the Director acknowledged that the entirety of the material served as tendency evidence might not be relied on at a future trial. Having summarised the key elements in four paragraphs of her written submissions, she accepted that that material might suffice. The recorded conversations included transcripts of (i) a “Skype chat” dated 21 August 2015, and (ii) a recorded conversation with an undercover police officer dated 18 September 2015. Much of that material has no direct bearing upon the pleaded tendency. Although it is not prejudicial, nevertheless it may form a distraction and should be excluded on that basis, if the accused takes such an objection. The orders should limit the admissible material to reflect the Director’s acknowledgement.

4. [50]

   In these circumstances, the following orders should be made:

   1. (1)

      Set aside the ruling of the trial judge made on 12 September 2018 rejecting the tendency evidence proffered by the prosecutor.

   2. (2)

      Direct that, subject to order (3), so much of the tendency evidence itemised in the notice dated 16 August 2018, together with additional material served on the day before the hearing in the District Court, is admissible on the trial of the accused on the charges set out in the indictment dated 10 September 2018.

   3. (3)

      The admissible material is limited to that described by counsel for the Director in pars 13-16 of the submissions in this court, as set out in Part B of the schedule to these reasons.

Suitors’ Fund Act certificate

1. [51]

   As an addendum, it may be noted that after judgment was reserved the Court received notice from the respondent that, if the appeal were upheld, an application would be made for a certificate under the Suitors’ Fund Act 1951 (NSW). If necessary the Court will entertain such an application, but would need to be satisfied that the Act applies to proceedings in this Court.

2. [52]

   Whether the Court has power to grant a certificate has been considered in a handful of cases, which do not speak with one voice: see, eg, R v AB (No 2); [29] Director of Public Prosecutions (NSW) v Moradian, Saliba and Sparos; [30] R v Gilfillan [31] and R v King. [32] Certificates have been granted in a number of cases where the power to grant a certificate has not been challenged or has simply been assumed. [33]

3. [53]

   It should be borne in mind that s 6(2) of the Suitors’ Fund Act provides for an unsuccessful respondent to an appeal to obtain reimbursement of (i) payments made pursuant to an adverse costs order and (ii) a portion of the respondent’s own legal costs. With respect to (i), s 17 of the Criminal Appeal Act provides that no costs shall be awarded by this Court, so there can be no adverse costs order. With respect to (ii), the first hearing date had to be vacated because Legal Aid had not made a decision to fund the respondent who was, as a result, unrepresented. [34] The Court was later advised by trial counsel for the accused that he would appear pro bono at the hearing of the appeal, and did so. It is by no means clear there would be any utility in granting a certificate.

4. [54]

   JOHNSON J: I have had the advantage of considering the judgments of Basten JA and R A Hulme J.

5. [55]

   Like R A Hulme J, I do not join in agreement with the reasons of Basten JA (at [4]-[24]) concerning the nature of an appeal under s.5F Criminal Appeal Act 1912 against a ruling on admissibility of evidence. Counsel appearing at the hearing of the appeal did not address this issue. Further, as R A Hulme J observes, the error established by the Crown in this case would satisfy both formulations of the test explained by Basten JA.

6. [56]

   Determination of the nature of an appeal of this type should await an appeal where the Court has the benefit of submissions from counsel on the topic.

7. [57]

   I agree with R A Hulme J (at [60]) that the power of this Court to determine the question of admissibility arises from s.5F(5)(b) Criminal Appeal Act 1912.

8. [58]

   Subject to these matters, I agree with the reasons and proposed orders of Basten JA.

9. [59]

   R A HULME J: Basten JA has discussed the two possible bases upon which appellate review might proceed in an appeal concerned with the admissibility of evidence under s 5F(3A) of the Criminal Appeal Act. This is a subject upon which the Court did not have the benefit of submissions by counsel. I am of the view that it is a matter that is unnecessary to decide in the circumstances because I am satisfied on either of these bases that the trial judge erred in his consideration and determination of the question of admissibility of the evidence.

10. [60]

    I also note that upon setting aside the decision of the primary judge, the power of the Court itself to determine the question of admissibility is not dependent upon Bauer. Such power is available pursuant to s 5F(5)(b) of the Criminal Appeal Act.

11. [61]

    Aside from these matters, I agree with the reasons of Basten JA and the orders he proposes.