Kautoga v R

BEAZLEY ACJ: I have had the advantage of reading in draft the reasons of Adamson J. I agree with her Honour’s reasons and proposed orders.

ADAMSON J: The applicant seeks leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) against an order made by Woodburne SC DCJ refusing his application, by notice of motion, that the five counts in the indictment (with the exception of counts 2 and 3) be tried separately.

As the motion turned, at least in part, on the application of various provisions, it is convenient to set them out.

Section 29 relevantly provides:

Section 21 relevantly provides:

Section 97 of the Evidence Act relevantly provides:

Section 98 of the Evidence Act relevantly provides:

Section 101 of the Evidence Act relevantly provides:

By notice of motion filed on 27 February 2017 the applicant sought orders severing the counts on the indictment, such that counts 2 and 3 would be tried together and counts 1, 4 and 5 would be tried separately from those counts and each other.

The trial judge had regard to the full Crown brief in determining the motion as well as her rulings on evidence referred to below. In annexure “A” to the reasons for decision, her Honour summarised the Crown case by reference to the material in the brief. For present purposes it is not necessary to canvass this material in detail. The Crown case on the five counts on the indictment in the summarised in the table below, which has been ordered chronologically.

In addition to the matters referred to above, the Crown referred the trial judge to evidence, which it proposed to tender at trial, which was relevant to the issue of identification. The Crown relied on evidence that the applicant trained with a football team known as the Manly Marlins. Various items of clothing were located when a search warrant was executed on the applicant’s residence in October 2014, including a royal blue, white and black singlet; a royal blue ASICS-brand singlet; and a blue Manly Marlins shirt. Although no blue-and-white Manly Marlins singlet was located at the applicant’s home in October 2014, the Crown foreshadowed that it would seek to persuade the jury to draw the inference that what AP and the witnesses to count 1 saw the assailant wearing was a Manly Marlins singlet and that it was the applicant who was the assailant.

The Crown also provided this Court with an aerial photograph which showed the alleged locations of counts 2, 3, 4, and 5, as well as the locations of CCTV cameras where a male was said to have been sighted at various times together with a table of times when a male (on the Crown case, the applicant) had been sighted. The table recorded that the male had entered Shore Club at South Steyne Manly at 11.35pm on 9 March 2013 and left at 1.38am on 10 March 2013. The table also recorded sightings of a male on his way from the Berry Avenue residence to Manly beach and from the beach back to Berry Avenue between 5.40am and 6.30am.

The Crown provided to the trial judge a tendency notice which it had served pursuant to s 97 of the Evidence Act. It relied on the following conduct as relevant to the particular counts set out:

The tendency notice specified that the tendency evidence bears on facts in issue, including: whether the accused sexually and/or indecently assaulted each of the complainants of counts 1-5; and whether there is an innocent explanation for each of the facts alleged by the complainants.

The Crown provided to the trial judge a coincidence notice which it had served pursuant to s 98 of the Evidence Act. It relied on the same categories as set out above with respect to the tendency notice, as well as the following:

The applicant argued that there was no statutory basis for the joinder under s 29 of the Criminal Procedure Act; that he would be prejudiced if the proceedings for the counts (except 2 and 3) were heard together; and that the interests of justice required four separate trials.

Rulings on the admissibility of certain evidence were made at the same pre-trial hearing at which the motion for a separate trial was determined. Her Honour relevantly made the following three rulings:

The trial judge referred to s 29 (which provides for more than one offence to be heard at the same time) and s 21 of the Criminal Procedure Act (which provides for separate trials). Her Honour addressed the similarities and differences between the separate counts and concluded that the offences in counts 1-5 form, or are 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. Her Honour considered the interests of justice under s 29(3) and other related matters under s 21(2) (relating to potential prejudice or embarrassment to the applicant by reason of being charged with more than one offence in the indictment). Her Honour addressed the use to which particular categories of evidence could be put to determine the matters relevant to s 29(3) and s 21(2).

The first category considered was “transactional” or “state of mind” evidence, which principally concerned the applicant’s state of mind on 10 March 2013. The Crown relied on this evidence in support of its case that, throughout the early hours of 10 March 2013, the assailant in counts 4 and 5, and the applicant in counts 2 and 3, displayed an interest in engaging in brazen non-consensual sexual activity with women, including digital penetration and touching of the vagina. Her Honour accepted that proof of the applicant’s state of mind for counts 2 and 3 was so close in time to the commission of counts 4 and 5 as to be relevant both to state of mind and identity.

Her Honour found:

The trial judge was satisfied that the state of mind evidence could rationally affect the assessment of whether it was the applicant who committed each of counts 4 and 5. However, in the exercise of her discretion (under ss 137 and 101 of the Evidence Act), the trial judge decided that, in order to “eliminate any risk of danger of unfair prejudice through the state of mind evidence being given too much weight”, the jury should be directed that they could only take into account the tendency evidence of counts 4 and 5 in determining counts 2 and 3 if they were satisfied that the applicant was the person involved in counts 4 and 5. This aspect of her Honour’s decision is reflected in the evidentiary ruling (3) above.

Her Honour addressed the cross-admissibility of the evidence on counts 1, 4 and 5 under s 98 of the Evidence Act by reference to the process outlined in R v Gale; R v Duckworth (2012) 217 A Crim R 487; [2012] NSWCCA 174 at [31] per Simpson J (McClellan CJ at CL and Fullerton J agreeing). Her Honour addressed the similarities and differences between counts 1, 4 and 5 and concluded that the dissimilarities did not detract from the capacity of the evidence to affect the probability that the offences were committed by the same offender. The trial judge also addressed the other circumstantial evidence that the Crown intended to adduce in support of its case on counts 1, 4 and 5, including the descriptions of the assailant; where the applicant was residing or staying at a time proximate to the alleged offences; the similarity between the clothing described by the witnesses and the training singlets worn by the Manly Marlins, with which the applicant was associated; CCTV footage in Manly; and the evidence that the applicant could not be excluded as a minor contributor to the DNA mixture on the internal waistband of the gym pants of SW (the complainant in count 4).

The trial judge also assessed the prejudice to the accused (by reference to ss 101(2) and 137 of the Evidence Act) but considered that the risk of the danger of unfair prejudice could be obviated by directions as to the use to which such evidence could be put.

The trial judge addressed the terms of s 97 when considering the question whether evidence of counts 1, 4 and 5 was admissible on counts 2 and 3.

Her Honour found:

Having addressed the issues of admissibility and use which would arise if the five counts on the indictment were not severed, her Honour concluded that it was not in the interests of justice for the counts to be heard separately and recorded her satisfaction that the applicant would not be prejudiced or embarrassed in his defence by reason of his being charged with counts 1-5 on the one indictment.

Mr James QC, who appeared on behalf of the applicant, accepted that the evidence of each count was potentially relevant to each other count. However, he submitted that her Honour was in error in finding that the offences (except counts 2 and 3) were “part of a series of offences of the same or a similar character” (s 29(2)(c)) and contended that it was not open for her Honour to determine that it was in the interests of justice for the other counts, and particularly count 1, to be tried with counts 2 and 3.

As the question of whether to sever counts on an indictment involves the exercise of a discretion, the applicant must show error of a particular kind. The type of error that must be demonstrated includes the following: acting on a wrong principle; allowing extraneous or irrelevant matters to guide or affect the decision-maker; mistaking the relevant facts; failing to take into account some material consideration; or, in circumstances where no specific error of such kind can be demonstrated, where the result is, upon the facts, unreasonable or plainly unjust such that it can be inferred that there has been some error or miscarriage in the exercise of the power: House v The King (1936) 55 CLR 499 at 504-505; DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [70] per Spigelman CJ; [78] per Allsop P; [157] per Simpson J (Kirby and Schmidt JJ agreeing).

There is a further reason why this Court ought be restrained in interfering with the decision to refuse an application for separate trials: the applicant is protected by his right, if circumstances change, to renew the application; and, if he is convicted, to argue that the trial, as it was actually conducted, was unfair. In DAO v The Queen, Spigelman CJ (Allsop P, Simpson, Kirby and Schmidt JJ agreeing) said:

The decision, made before a trial, not to sever counts on an indictment, necessarily requires a measure of prediction as to how a trial will unfold; what evidence will be admissible on one count and not another; and whether directions will be sufficient to ameliorate any prejudice which could be occasioned to an accused by impermissible use of evidence that can be used for one purpose but not for another. To the extent to which such issues could be anticipated, her Honour’s reasons demonstrate a careful consideration of how they would be resolved at trial by directions to the jury. This process is pre-eminently one for the trial judge. It is affected by the view of the trial judge as to the admissibility of evidence and the directions which will ultimately be given to the jury if the evidence is led as the Crown has foreshadowed at the pre-trial hearing.

As Allsop P explained at [100] in DAO v The Queen, when reviewing a ruling by a trial judge under s 97 of the Evidence Act, an appellate court is undertaking a limited review:

I am not persuaded that the applicant has established any error in the trial judge’s decision to refuse his application for separate trials and for severance of the indictment. Her Honour correctly articulated the applicable statutory provisions and the principles outlined in the authorities to which reference was made in her Honour’s reasons. No error has been established in the trial judge’s rulings on the admissibility of evidence or the weighing of probative value against danger of unfair prejudice. No error has been shown in her Honour’s conclusion that the risk of unfair prejudice to the applicant could be sufficiently ameliorated by directions to the jury.

The Crown opposed the grant of leave and argued that the applicant has, in his submissions, merely repeated the arguments which had been put on his behalf before the trial judge, and has not attempted to identify any error of the House v King variety. There is much force in this submission. However, I understood Mr James ultimately to submit that it was not open to her Honour to find that the risk of prejudice to the accused could be ameliorated by directions. This submission raised a question which, had it been resolved favourably to the accused, would have resulted in the appeal being allowed. For this reason I am prepared to grant leave, although, for the reasons given above, the appeal ought be dismissed.

I propose the following orders:

WILSON J: I agree with Adamson J.