R v Denton

HOEBEN CJ AT CL: On 8 April 2019 the Court made an order dismissing a prosecution appeal against a ruling on evidence made by Sweeney DCJ in trial proceedings in relation to the above matter. The following briefly sets out my reasons for joining in that order.

Before setting out those reasons, I fully accept as accurate the review of the facts by Hamill J in his judgment.

I agree with Hamill J that if the forensic photographs were relevant, their probative value was so low that their tender should have been rejected because of the danger of unfair prejudice to the respondent (s 137 of the Evidence Act 1995 (NSW)).

Unfortunately, where I differ from Hamill J is on the question of the relevance of the forensic photographs.

As Hamill J has set out, the basis upon which the prosecution sought to tender the photographs was to invite the jury to make their own comparison between them and the diagrams made by the complainant. The jury was to do this unguided by any expert opinion as to whether there was anything unusual, abnormal or distinctive about the respondent’s penis.

On that state of the evidence, a finding by the jury to the effect that there was some similarity between the diagrams drawn by the complainant and the photographs proved nothing. Most particularly, the photographs did not advance the prosecution’s fundamental proposition that such a similarity supported the complainant’s testimony that the respondent had exposed his penis to her prior to the offending with which he had been charged.

Put another way, on that state of the evidence the similarity between the photographs and the diagrams went no further than to establish that the complainant had drawn a diagram of a penis which had some similarity with a photographs of the respondent’s penis. What was left unproved was the identification of some feature which was present in the photographs and diagrams which was abnormal or different so as to distinguish the respondent’s penis from what would be regarded as normal.

In any event, on either analysis of the facts the prosecution’s appeal was properly dismissed.

R A HULME J: I agreed with the dismissal of the Crown appeal against the trial Judge's ruling that the photographs of the accused's penis were not admissible for the purposes of comparison with sketches of the same drawn by the complainant. Whether the trial Judge was of the view that it was a lack of relevance or an outweighing of probative value by a danger of unfair prejudice that rendered the evidence inadmissible is not clear as Hamill J has pointed out. I was of the view that either conclusion was open to her Honour and that her ruling was correct.

HAMILL J: On Monday 8 April 2019, the Court made orders dismissing a prosecution appeal against a ruling on evidence made by Sweeney DCJ in trial proceedings in the District Court. The ruling prevented the Prosecutor from tendering two photographs depicting the penis of the accused. Because the trial was into its fourth day and the jury had been sent away until Tuesday 9 April 2019 to allow the prosecution to bring this appeal, the Court made orders but did not provide reasons. These are my reasons for joining in the orders made.

The respondent is standing trial in relation to two counts of aggravated indecent assault and three counts of sexual intercourse with a child between the ages of 14 and 16: ss 61M(2) and 66C(3) Crimes Act 1900 (NSW). In earlier trial proceedings, the respondent was convicted of one count of committing an act of indecency on the same child but the jury was either unable to reach verdicts on the remaining counts or found the respondent not guilty (“the earlier trial proceedings"). [1]

The controversy surrounding the admission of the photographs arose because of the complainant's description of the first incident or sexual encounter between her and the respondent. Her evidence was pre-recorded on 23 January 2018. She described being sexually assaulted in a shed at her grandmother’s farm some time during 2014. At that stage she was 14 or 15 years of age and the respondent was 20 or 21 years old. She said the respondent provided her with alcohol and remembered "being quite intoxicated, not being able to see properly straight or being able to walk." [2] She remembered getting up from a chair and being “very wobbly” when the respondent said something along the lines of "I have something abnormal on my penis". She said the respondent wanted to show her so that she could tell him whether it was abnormal or not. She was not sure of the precise words that he used. She described what then happened as follows:

The complainant was interviewed by police on 6 October 2016 and drew some pictures. The first picture was admitted without objection as Exhibit 2 (on the pre-recorded evidence). She spoke with police again on 3 July 2017 and provided a more detailed picture or diagram of the respondent’s penis which became Exhibit 3. Most of the pre-recorded evidence was tendered in the trial proceedings. This included the two diagrams. It is difficult to discern precisely what is depicted in the first diagram. The second diagram included a picture of what is obviously a penis. In the area of the frenulum, below the glans, and at the top of the shaft of the penis, the complainant drew a roughly oval or marquise shaped outline of an area she labelled "abnormal skin flap". Insofar as it is relevant, and it may not be, the picture or diagram appears to depict a circumcised penis; at least, there is no clear depiction of the foreskin in the diagram.

When the respondent was arrested the police undertook an intimate forensic procedure during which a police officer with the aid of a medical practitioner took photographs of the respondent's genitalia. Two of those photographs were the subject of the objection upheld by the trial Judge. It is against the exclusion of those photographs that the prosecution appealed pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW).

The Court was told that the photographs were admitted without objection in the earlier trial proceedings. Further the prosecution called a Dr Lee who gave evidence concerning the question of whether there was anything abnormal or unusual about the accused’s penis. This evidence was not before the Court on the hearing of the appeal. In the present trial proceedings, objection was taken to the evidence of Dr Lee on the basis that the doctor lacked the necessary expertise to offer an opinion on the question of whether the respondent’s penis was in any way abnormal or unusual. There was no appeal against the ruling rejecting Dr Lee’s evidence. Accordingly, the basis upon which the photographs were tendered was to invite the jury to make its own comparison between the photographs and the diagrams provided by the complainant. In the absence of Dr Lee’s evidence, or that of a qualified expert, the jury was to do this unguided by any expert opinion as to whether there was anything unusual, abnormal or distinctive about the penis that was subject of the evidence.

The ruling that Dr Lee's evidence was inadmissible was made on the third day of the trial. At the beginning of the fourth day, the Prosecutor indicated that they did not wish to "cavil with her Honour’s ruling" but indicated that they wished to tender the photographs. The Prosecutor explained: [3]

The Prosecutor went on to say: [4]

The Prosecutor relied on Korgbara v The Queen [2007] NSWCCA 84; (2007) 170 A Crim R 568 (a case involving voice identification where the jury was permitted to compare the voice of the accused on a recorded telephone call in English with calls in another language to determine whether they were also the accused) and Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 (which concerned a comparison between the known appearance of the accused and footage retrieved from a Closed Circuit Television camera).

Counsel for the respondent raised a number of objections. His first objection concerned the fact that the police officer then in the witness box was not the officer who took the photographs. The trial Judge indicated correctly that the Prosecutor could call the officer who did take the photographs and this part of the objection quickly fell away.

The more substantive part of the objection was an objection under ss 55-56 of the Evidence Act 1995 (NSW) whereby it was submitted that the evidence was not relevant. If it was relevant, the submission continued, the probative value was such that it was outweighed by the danger of unfair prejudice thus requiring its exclusion under s 137 of the Evidence Act. At the heart of the respondent’s submission was that there was no expert evidence available to the jury capable of establishing that the feature of the penis indicated in the diagram was in any way abnormal or unusual. Accordingly, there was a danger of unfair prejudice in the jury being permitted to make its own comparison and operate under a false assumption that there was something unusual in what they were looking at in the photographs, and that this somehow strengthened the prosecution case. This was potentially misleading and created a danger of unfair prejudice.

Counsel indicated that the accused proposed to call evidence from an urologist, Dr Wines, to the effect that his examination of the penis of the accused found that it was well within normal range. Dr Wines’ report was provided to the Court on the hearing of the appeal. He described the appellant as a man who “has normal genitalia and normal genital function”. He stated in his report that “the appearance of the frenum, while short, lies well within the range of normal anatomy of the uncircumcised penis.” [5] He went on to say that the sketch provided (presumably that drawn by the complainant) "shows an exaggerated impression of the frenum compared with that observed [by the urologist]”.

The trial Judge provided an ex tempore judgment immediately upon the conclusion of the argument. It is brief, reflecting the urgency with which the decision was made and the exigency that the jury was waiting outside or in the jury room while the issue was resolved. The ex tempore judgment concluded: [6]

The ex tempore judgment must be considered in the context of the urgency with which it was delivered. Her Honour’s reasoning was further exposed when the Prosecutor sought a series of adjournments to take advice from the Director of Public Prosecutions as to whether to lodge an appeal under s 5F(3A). The jury was permitted to leave the Court complex for an hour or so and when the Prosecutor returned they indicated that they were "directed to seek an appeal on your Honour’s ruling, which refused the Crown tender of the three photographs." A discussion ensued as to the extent and basis of the ruling. Her Honour asked the Prosecutor why it would not be possible to show the photographs to the expert to be called by the defence and seek his opinion on matters relevant to the issue. The photographs could be tendered on that limited basis. In light of that indication, the Prosecutor sought a further adjournment to speak with the Director as to whether to proceed with the interlocutory appeal.

When the Prosecutor returned they said: [7]

The argument continued with her Honour pointing out that the diagram itself was labelled “abnormal skin flap” in the area of the frenulum. Her Honour expressed the view that the nature of the diagram and the description of "abnormal skin flap" could not be taken "out of the equation, because that's her evidence, and I think that that would be asking the jury to do something which they’re not qualified to do”. Her Honour went on to say: [8]

Her Honour again indicated that it would be open to the Prosecutor to show the photographs to the defence expert and ask for his opinion on the question of the abnormality and the comparison between the sketch on the one hand and the photographs on the other. The Prosecutor reiterated that their intention in attempting to call Dr Lee was to prove the abnormality. That submission was rejected (correctly) on the basis that Dr Lee’s evidence had been excluded because he was not qualified to provide a relevant opinion. Again that ruling is not subject of the appeal to this Court and, based on the limited information available to the Court, appears to be correct.

The submissions on appeal were in generally similar terms to those made before the trial Judge. In other words, the submission was that the issue was not that the respondent’s penis was unusual or abnormal or distinctive but, rather, the evidence was relevant because the jury could compare the depiction of the respondent’s penis in the complainant's drawings with the photographs taken by the police. The evidence was relevant in circumstances where the contest between the parties included whether the complainant had seen the respondent’s penis in the circumstances she described.

I am prepared to accept that the evidence was relevant pursuant to s 55 of the Evidence Act. Taking the evidence at its highest, the jury may have accepted that there were relevant similarities between the drawing and the photographs and that affected the probability of a fact in issue (whether the complainant had seen the respondent’s penis). However, the extent to which it may have done that – that is, the probative value of the evidence – was limited in the absence of evidence that the appellant’s penis was in some way abnormal or distinctive. If it was not, the picture drawn by the complainant was really little more than a drawing of a penis.

The arguments and submissions, both in the District Court and in this Court, tended to descend into analogies and comparisons with the two cases relied on by the prosecution. For example, it was submitted that an analogous situation was where a witness provided a sketch plan or diagram of a house or a room and the admissibility of a photograph subsequently taken by investigators of the house. However, that is an imperfect analogy. Such a comparison involves a comparison of specific and known criteria such as the location of the rooms within the house or the location of items of furniture or appliances within the rooms. Evidence of that character was admitted in the respondent’s trial. Evidence was given by the complainant that the respondent had a particular tattoo on his buttock and a photograph of the tattoo was tendered. As with the analogy of the diagram of the house, this involved a comparison of clearly identifiable features of the object or thing depicted in the photograph. The same can be said of the comparisons held to be legitimate (if undertaken by the jury) in both Smith v The Queen and Korgbara v The Queen.

A more apt analogy was provided by Sweeney DCJ in the course of the argument in the District Court: [9]

While her Honour did not identify the precise basis (in terms of the Evidence Act) upon which she excluded the evidence, it is apparent from the record of argument and the brief ex tempore judgment that her Honour assessed the probative value of the photographs as relatively low. In the absence of any evidence to establish that the accused had a distinctive, or unusual, or abnormal frenulum, this assessment was correct.

Similarly, the judgment and transcript of argument suggests her Honour was concerned that there was a danger of unfair prejudice in the admission of the evidence. That arose from the possibility that the jury would make the comparison on the false assumption that photographs depicted a penis that was other than normal, in circumstances where there was no evidence capable of supporting that assumption. In this respect, the evidence was capable of being misused.

On the hearing of the appeal, counsel for the appellant very properly acknowledged that s 137 had “some potential work to do”.

If the trial Judge’s approach was that the evidence was not relevant, she fell into error. However, it is not clear that this was her Honour’s approach and, in any event, her ruling that the evidence was inadmissible was correct. The danger of unfair prejudice outweighed the probative value of the evidence and s 137 mandated its exclusion.

In those circumstances, the appropriate order was that the appeal be dismissed. It is unnecessary to consider whether the appeal reached the jurisdictional pre-condition in s 5F(3A) that the exclusion of the evidence “substantially weakened” the prosecution case.

For those reasons, I joined in the orders dismissing the appeal.