R v Gregory-Roberts

1. [1]

   McCALLUM J: I agree with Schmidt J.

2. [2]

   R A HULME J: I agree with Schmidt J.

3. [3]

   SCHMIDT J: The respondent has been charged with six indecent assault offences alleged to have been committed between 30 April 1981 and March 1982, at his rooms at Bondi, where he was in practice as an ophthalmologist. The complainant, KB, was then aged 11 years. As described by Craigie SC DCJ (at pp 3 – 4), the charges concern:

4. [4]

   On 18 November 2015, his Honour found that evidence of complaints made by the complainant to three witnesses was inadmissible under s 66 of the Evidence Act 1995 (NSW) and that the content of four pretext telephone calls made by the complainant to the respondent which the Crown alleged contained admissions, was also inadmissible under s 55 of the Evidence Act. His Honour then provided draft reasons of some eight pages for those conclusions, observing:

5. [5]

   On 19 November the Crown advised that the rulings would be appealed under s 5F(3A) of the Criminal Appeal Act 1912 (NSW). On 24 November a second 34 page judgment was published. It contained a notation that:

6. [6]

   The Crown was given leave at the hearing to amend its notice of appeal to refer to both the 18 and 24 November judgments. It emerged that it was common ground that attention should be paid to his Honour’s second judgment, as reflecting his Honour’s considered explanation for the conclusions he had reached on 18 November.

7. [7]

   That was of some importance because the second judgment contained both additions to and deletions from the reasons given in the first judgment. For example, in the first judgment his Honour said that he had found it unnecessary to wrestle with the “somewhat conflicting statement[sic] of appellate authority as to whether my consideration of s 137 in particular, could be impacted at this stage by assessments of probative weight” referring to R v XY [2010] NSWCCA 181; (2010) 79 NSWLR 629. He also discussed the consequences of the respondent having to provide an explanation for the pretext conversation, referring to R v Cook [2004] NSWCCA 52 and the arguments advanced by the Crown as to what it contended was a lesser difficulty for the respondent in this case. His Honour said that “in the event that I was driven to make a ruling in this area, I would have great difficulty in recognising that as a realistic or fair approach.”

8. [8]

   These were amongst the observations which do not appear in the second judgment. It must be accepted that they were views to which his Honour did not finally adhere.

9. [9]

   That the revisions made to the first judgment, after advice of the proposed appeal was given, were open is questionable, given the limits on the extent to which such revisions may be made (see Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463). There reference was made at [43] - [44] to Lam v Beesley (1992) 7 WAR 88, where Owen J said at p 95 in respect of the revision of reasons for judgment given by a magistrate in a summary criminal trial, that if changes to a judgment were matters “such as could lead to an appearance of altered substance” as opposed to matters of form, that was sufficient to render a conviction unsafe and unsatisfactory.

10. [10]

    Nevertheless, given the common ground lying between the parties and the absence of any ground of appeal going to his Honour’s revisions, it is not necessary to deal further with this difficulty. The appeal must be approached on the footing that the 24 November judgment disclosed the reasons on which his Honour’s rulings finally rested.

11. [11]

    This Court's jurisdiction under s 5F(3A) arises only where a ruling or decision on the admissibility of evidence either eliminates or substantially weakens the Crown case. The proper construction of the section and whether his Honour’s conclusions had that effect were in issue; as was whether his Honour had erred in his rulings under s 55 and s 66 of the Evidence Act. Whether on this appeal, the Court had jurisdiction to deal with conclusions which his Honour reached in relation to the exercise of the discretion to exclude the disputed evidence under s 135 and s 137, in the event that his rulings were wrong, depended on House v R [1936] HCA 40; (1936) 55 CLR 499 error being shown, was also in issue.

12. [12]

    It should also be noted that it was common ground that while the parties had addressed the relevance of the disputed complaint evidence to the complainant’s credit and the possibility of an application under s 108 of the Evidence Act being made on the voir dire, the time for making such an application has not yet arisen. The respondent thus accepted that even if the appeal failed, at trial it would be open to the Crown to seek to rely on that evidence on the question of the complainant’s credit.

Jurisdiction under s 5F(3A)

1. [13]

   The respondent’s case was that properly construed, s 5F(3A) only permits appellate intervention in respect of rulings or decisions as to particular evidence the exclusion of which “substantially weakens the Crown case”. Where more than one piece of evidence is the subject of a decision or ruling, the cumulative effect of the exclusions cannot be taken into account.

2. [14]

   That is not a natural reading of s 5F(3A), which provides:

3. [15]

   There is no obvious reason for reading the word ‘evidence’ in the singular. That the right of appeal under subs (3A) is limited to a decision or ruling on the admissibility of evidence which “eliminates or substantially weakens the prosecution’s case”, also does not support the construction for which the respondent contended. Consistently with s 8 of the Interpretation Act 1987 (NSW), the word should be read as including one or more pieces of evidence dealt with in the decision or ruling.

4. [16]

   The section is concerned with the effect of a decision or ruling to exclude evidence, on the Crown case. It is a matter for the Crown to determine the evidence to be led, for an accused to determine what evidence is objected to and the trial judge to rule on those objections. If objections are upheld, the Crown is given a limited right to appeal, that is, in the event that the decision or ruling eliminates or substantially weakens the prosecution case. The section thus plainly comprehends both decisions and rulings which either excludes evidence, or which limits the use to which evidence can be put.

5. [17]

   In this case the respondent objected to the admission of the complaint evidence of three witnesses, as well as the admission of the evidence of the pretext conversations, each of which, if accepted by the jury, would support the evidence of the complainant.

6. [18]

   His Honour excluded all of the evidence to which objection was taken. What now arises on appeal is whether that decision has substantially weakened the Crown case. That does not depend on a separate assessment of each piece of evidence which supported the complainant’s evidence, to which objection was taken.

7. [19]

   That approach to s 5(3A) is consistent with that taken in R v Nguyen [2010] NSWCCA 97 at [4] that “when there are a number of rulings on evidence which are sought to be challenged together in an application such as this, the court can consider the combined effect of those rulings and is not restricted to considering the effect of each individual ruling. In those circumstances, it seems to me that the appropriate course is first to look at each individual ruling to determine whether there is error, and then to consider whether the cumulative effect of those rulings is to eliminate or substantially weaken the prosecution’s case.” A similar approach was taken in R v Edwards [2015] NSWCCA 24 at [75] - [76].

8. [20]

   In this case, so approached, I am satisfied that the effect of the challenged decision is to substantially weaken the Crown case.

9. [21]

   As discussed in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 that requires an assessment of the Crown case. Further, as there discussed at [40], the issue must be approached on the assumption that the evidence in question is accepted by the jury.

10. [22]

    Both complaint evidence and admissions can, undoubtedly, be important in cases of alleged sexual offending by an adult, in private, against a child, many years ago. Evidence of past complaint about matters the subject of such charges, if accepted by the jury, will support both the truthfulness and the reliability and credibility of the alleged victim. Such complaint has long been accepted to be important in cases of alleged sexual offending (see R v BD (1997) 94 A Crim R 131 at 139.) An alleged offender’s admissions, if accepted, can corroborate aspects of the complainant’s evidence and provide a basis for a submission as to consciousness of guilt on the accused’s part.

11. [23]

    Here the Crown case depends in large part on the evidence of the complainant. Given the nature of the evidence, which I will discuss below, I am satisfied that the rejection of both the complaint evidence and the evidence of the pretext conversations has substantially weakened the Crown case. Accordingly its right of appeal is enlivened.

The appeal must be upheld

1. [24]

   I am also satisfied that there was error in the approach taken by the trial judge to the issues which he was called on to resolve under s 55 and s 66 of the Evidence Act and, as a result, error both of law and in the House sense, in the conclusions which he reached as to the admissibility of the disputed evidence, has been established.

2. [25]

   Accordingly, the appeal must be upheld.

The complaint evidence

1. [26]

   The Crown case is that the respondent first treated the complainant for short-sightedness as an 11 year old. After the second appointment he went to her home and spoke to her mother. Her parents, Greek immigrants, were at that time divorcing. Her mother then had the care of the complainant and the six other children of the marriage, one of whom had Down Syndrome. Another suffered an unspecified mental disability.

2. [27]

   The respondent is alleged to have offered the complainant’s mother assistance in speaking to the complainant about puberty. The mother accepted the offer, considering that to be a normal matter for a doctor to assist with. Shortly afterwards the complainant began attending the respondent’s rooms, on her own, after school.

3. [28]

   The initial advice which the respondent is alleged to have given the complainant related to physical and emotional changes involved in puberty. The advice is alleged to have progressed to sexual reproduction, oral sex and masturbation, pursued by the respondent in order to groom the complainant, to obtain her compliance with the conduct involved in the alleged offences.

4. [29]

   It is also alleged that the offending ceased after the respondent bought the complainant gifts for her 12th birthday, while he was overseas; that she mentioned something to her sister, who became jealous; and that her mother became suspicious and then stopped contact between the complainant and the respondent. An allegation that there had also been inappropriate conduct towards the complainant’s sister is not being pursued by the Director, although the respondent raised this matter in the evidence which he gave on the voir dire.

5. [30]

   In 2009, some 28 years after the alleged offending, the complainant made complaint about the respondent to police. She has since made several statements. In her March 2009 statement she mentioned having spoken to a proposed witness, [MG], about the alleged offending. The complainant there says “I remembered speaking with a girlfriend [MG], about what happened. She was in my form at school. I don’t remember how old I was when I spoke to her about it”. She makes no mention of having made other complaints.

6. [31]

   MG says in her March 2009 statement that she was at high school with the complainant; that they had classes together; and by year 9, in 1984 they had become best friends. That year, outside the maths room, she and the complainant were discussing another girl and gossip that she had been the subject of domestic violence by her father. The complainant then said “Her father is molesting her”. MG asked ‘How would you know that by just looking at her?” and the complainant replied, using words to the effect that “I was molested by my optometrist.” She also recalled the complainant telling her that she did not wish anyone else to find out and that MG should not tell her sister.

7. [32]

   RB said in her May 2009 statement that she was a school friend of the complainant in high school; that they became close and spent lunch breaks together; and that in 1986, while they were in year 11 together, and as his Honour summarised her evidence:

8. [33]

   In her January 2013 statement, SS said that she attended high school with the complainant, but their friendship did not deepen until years 11 and 12, in 1986 - 1987. His Honour summarised her evidence (at p 10) to be that:

The s 66 application

1. [34]

   There is no issue that his Honour was correct in finding that the complaint to MG was made after an interval of 2 years or more, depending on the time in the school year of the last of the alleged offences and that the other two complaints were made some 4 years after the alleged offences.

2. [35]

   It was whether the representations which the complainant made to each of the three witnesses was, at the time they were made, “fresh” in her memory over which the parties joined issue.

3. [36]

   His Honour concluded that the representations were not then fresh, noting that it was only the complaint which she made to MG, to which the complainant was expected to refer in her evidence. That, his Honour accepted, was not fatal under s 66, if the requirements of the section were otherwise met, referring to what had been decided in XY (2010).

4. [37]

   In his second judgment his Honour concluded at pp 15 - 16 that:

5. [38]

   The section provides:

6. [39]

   Contrary to the respondent’s submission, it is apparent that his Honour erred in his approach to the exercise required by s 66 of the Evidence Act, in resolving the question of the admissibility of the complaint evidence.

7. [40]

   Section 66 provides an exception to the hearsay rule (s 59). It required his Honour to determine whether the representations which it is alleged the complainant made to the three witnesses was, at the time that they were each made, fresh in her memory. That required all of the evidence which touched on this question to be considered, including the evidence as to each of the matters specified in s 66(2A)(a)-(c).

8. [41]

   The conclusion arrived at could not rest on the passage of time before complaint was made. That was but one of the matters which had to be taken into account.

9. [42]

   In considering the evidence, it also had to be borne in mind that s 66 does not require that a complainant remembers having made a complaint to someone else. By its express terms s 66(2) contemplates circumstances where an offence is fresh in the complainant’s mind at the time that a complaint is made, but that the complainant does not later remember having made that complaint. In such an event, so long as the evidence establishes that at the time of making the complaint, the representations were fresh in the complainant’s memory, evidence of the representations can be called from the person to whom the complaint was made.

10. [43]

    What s 66 also does not require is that evidence be led from a complainant as to “the discrete issue” of the state of his or her memory at the time of making a complaint, although such evidence, if available, could be led, given the provisions made in s 66(2A). As discussed in XY (2010) at [78] - [79]:

11. [44]

    That conclusion as to the construction of s 66(2A) rested on a consideration of its terms, as well as the relevant legislative history, which included the amendment of the section following the High Court’s judgment in Graham, and the consideration given to s 66 by the Australian Law Reform Commission in its 2004 review of the operation of the Evidence Act. That history is reflected in the note to s 66A(2A) itself, which specifies that it was enacted “as a response to the decision of the High Court in Graham v The Queen”. In that case the view taken was that "fresh" in its context in s 66, meant "recent" or "immediate". Since the enactment of s 66(2A), it no longer has that meaning.

12. [45]

    As discussed in XY (2010) at [72] – [74], the Commission:

13. [46]

    It follows that his Honour’s consideration of whether, at the time of her complaints to the three witnesses, the representations were “fresh” in her memory, had to include the unusual circumstances of this alleged offending itself, as well as the time at which the representations were made by the complainant and her age and health at the time, if there was evidence of such matters. That exercise also could not properly rest on a comparison to the circumstances which arose for consideration in XY (2010), which his Honour considered to be distinguishable from the offending alleged in this case. It was the state of this complainant’s memory which had to be determined.

14. [47]

    What is alleged is that the complainant, an 11 year old girl, had initially been taken to consult the respondent, an ophthalmologist, for her short-sightedness. The Crown’s case is that after his approach to her mother, she came to regularly attend his rooms after school, alone, in order to receive instructions about puberty. It was then that she was initially groomed by the respondent, before the alleged offences were committed.

15. [48]

    The respondent’s instructions are alleged to have begun with an explanation of the physical and emotional changes associated with puberty; that they eventually developed to the point where the respondent gave the complainant physical instruction as to how to masturbate; as well as instruction as to what orgasm involved and whether she had yet achieved it, using the techniques he had taught her; the respondent eventually using his own finger to stimulate her clitoris, while kissing her on the mouth; and later, licking her clitoris; and posing the complainant, while she was dressed only in her underpants, in sexually provocative poses, while he photographed her.

16. [49]

    These were all, unquestionably, most unusual experiences for any 11 year old child to have when seeing an ophthalmologist, after school, in his rooms. Further light is shed on the nature of those experiences for the complainant, by the evidence that, at the time, she came to consider the respondent to have been her boyfriend. Contrary to the respondent’s submissions, all of this evidence is capable of informing a conclusion that these were memorable, complex and emotionally arousing experiences for the complainant.

17. [50]

    This, when considered together with the complainant’s youth and her naivety in sexual terms when she was aged only 11 years, made it highly likely that the memory of these events would endure in her memory for years to come. That is consistent with these events being still fresh in her memory at the time that she made the representations in issue to the three proposed witnesses, when only some two and four years had passed since the events were alleged to have occurred.

18. [51]

    Consistent with the events being such as to have long remained in the complainant’s memory is also that, some 28 years afterwards, she was able to give police a detailed account of the events which formed the basis of the charges then laid. That she also then remembered speaking to MG, but did not mention having made complaint to her other two school friends, does not suggest that the representations which on their evidence she made to each of them, some four years after the alleged events, were not then fresh in her memory.

19. [52]

    Given the provision made in s 66(2), that she makes no mention of speaking to the other two witnesses about these matters in her 2009 statement is, of but limited significance in determining whether the representations the three witnesses say she made to each of them, were fresh in her memory at the time she made them.

20. [53]

    Further, the fact that what the three witnesses remembered the complainant having told them, many years earlier, was consistent with what she said in her statements to police about the alleged offending many years later, also supports the conclusion that those representations were fresh in her memory when she spoke to the witnesses.

21. [54]

    In MG’s case what she remembered being told was that the complainant had been molested by an “optometrist”, rather than an ophthalmologist. In the circumstances that difference is of little moment. In RB’s case amongst the things that she remembered was that the complainant said that she had been touched and masturbated by a doctor. In SS’s case, that the complainant had said that she had been touched sexually and masturbated by a doctor during appointments.

22. [55]

    That decades later, the language used by the complainant and the witnesses in their statements and that the details of what she and they remembered her telling them differed in certain respects, is not surprising. That is not a proper basis for concluding that at the time that the representations were made to each of the three witnesses, they were not fresh in the complainant’s memory. Nor is the fact that the complaint witnesses were not given the details of the offences which the complainant later provided in the statements which she made to police.

23. [56]

    As discussed in XY (2010), at [90] “ambiguity or apparent inconsistency between such accounts” is not a sufficient reason to reject evidence in a criminal trial. It is for the jury, not the trial judge, to evaluate such evidence, including any matter of alleged inconsistency between statements to police and the terms of the representations earlier made to the witnesses and also to determine the weight they are to be given. In this case, where the trial will be conducted so many years after the event, in undertaking its task the jury will undoubtedly have to consider not only the reliability of the evidence of the complainant, but also that of the three witnesses.

24. [57]

    In the result, it must be accepted that his Honour erred both in his approach to the exercise he was called on to undertake under s 66 and in concluding that at the time that she made her complaints to the three witnesses, these unusual, emotionally disturbing events, which remained in her memory decades later, were not fresh in the complainant’s memory some two and four years after they are alleged to have occurred.

25. [58]

    The evidence is admissible under s66.

Exclusion under s 135 and s 137

1. [59]

   His Honour’s reasons for exclusion of the evidence under s 135 and s 137, it was argued by the respondent, could only be disturbed on this appeal if House v R error was established. This may not be accepted, given that the evidence was excluded under s 66.

2. [60]

   Consistent with what his Honour said in his second judgment as to this aspect of his decision being but an indication of how he would exercise the discretions given by these provisions, he explained only in the case of two of the three witnesses, how, if he was wrong in the conclusions which he reached under s 66, that he would exercise these powers. In doing so, he did not meet the obligation to give reasons for the decision, particularly as to how he had undertaken the required statutory balancing exercise required by s 137. That exercise does not appear to have been undertaken.

3. [61]

   In case he was in error in his conclusions under s 66, his Honour turned to consider “other grounds of challenge”, observing (at p 17):

4. [62]

   He concluded in relation to the evidence of RB, that it was of such real and unfair prejudice, that it had to be excluded under both s 135 and s 137. That conclusion rested on the observation (at pp 17 – 18) that:

5. [63]

   His Honour also considered that “putatively curative” directions would be inadequate and that if the evidence was admitted conditionally, on the basis that it did not go to establish the truth of the complaints, it was highly likely to result in confusion.

6. [64]

   As to SS’s evidence, his Honour took the view that it should be excluded under s 135 because of the absence of evidence from the complainant of having made such complaint and because of the general and qualified nature of the complaint. His Honour also said (at pp 18 – 19):

7. [65]

   His Honour did not deal with the exclusion of the evidence as to the complaint made to MG.

8. [66]

   Sections 135 and 137 provide:

9. [67]

   As has oft been discussed, while s 135 gives a discretion, s 137 requires a balancing of the probative value of the evidence against the danger of unfair prejudice to the accused. If that process results in a conclusion that its probative value is outweighed by the danger of unfair prejudice, the Court has no discretion and must refuse to admit the evidence.

10. [68]

    The complaint evidence is sought to be tendered for the purpose of proving the acts charged. There is no question that under s 55 of the Evidence Act, the complaint evidence is relevant, going as it does to the assessment of the probability of the existence of facts in issue. Under s 66, it will be received as evidence of the facts in issue and will also be relevant to an assessment of the complainant’s credibility and reliability (see IMM v The Queen [2016] HCA 14 at [71] - [72]).

11. [69]

    In assessing the probative value of the complaint evidence, for the purpose of either s 135 or s 137, account cannot be taken of its honesty or reliability. Whether it is accepted by the jury will depend on matters such as the time when complaint was made, what was said and to whom. At this point, however, it must be assessed on the assumption that it is accepted (see IMM at [52] - [58]).

12. [70]

    If accepted, the complaint evidence is clearly of real probative value, given that it establishes complaint about conduct which became the subject of the charges, made to school friends, many years before the complainant approached the police.

13. [71]

    The risks to which the respondent pointed as establishing unfair prejudice, was that the evidence would be misused by the jury as context or tendency evidence, or evidence of general sexual misconduct or guilty passion. That was said to have particular arisen in the case of RB and SS.

14. [72]

    The reason for excluding the evidence was said by his Honour to be expected disparity between the complainant's accounts and RB’s evidence. That, however, goes to the respective reliability of their evidence, a matter for the jury, not to the question of unfair prejudice.

15. [73]

    In relation to SS, his Honour considered the ambiguity of her statement to be a basis for its exclusion. Again, that was a matter for the jury. His Honour also took into account that the complainant gave no evidence of making complaint to SS, but that was of limited significance, given the provisions of s 66 earlier discussed.

16. [74]

    His Honour did not deal with MG’s evidence, which was that when discussing another school child, outside a classroom, the complainant said that she had been molested. While that was a succinct summary of what is now alleged against the respondent, it accords with what the complainant says happened to her.

17. [75]

    Legitimate use of relevant evidence provides no ground for the exercise of the discretion under s 135, or the duty under s 137 (see R v Yates [2002] NSWCCA 520 at [252]).

18. [76]

    As the Crown submitted, clear directions to the jury are capable of dealing with the risk that the jury would use the complaint evidence for impermissible purposes such as illegitimate forms of reasoning such as context or propensity reasoning, as the respondent contended arose (see SKA v Regina [2012] NSWCCA 205 at [205]). That possibility cannot in this case provide a foundation for the conclusion that the danger of the evidence causing unfair prejudice to the respondent outweighed its probative value, or that it would otherwise be unfairly prejudicial.

19. [77]

    There was also an issue as to whether the inferences to be drawn from the evidence as to the conversations on which the Crown seeks to rely is a matter for the jury, or can be considered by a trial judge, when called upon to exercise a discretion under s 137.

20. [78]

    In R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 where by majority (Basten JA, Hoeben CJ at CL and Simpson J, Blanch J not expressly deciding, Price J contra) the Court decided that trial judges in New South Wales should continue to disregard questions of credibility, reliability and weight in dealing with the admission of evidence challenged under s 137. However, Hoeben CJ at CL and Blanch J considered that the existence of "competing inferences" (or alternative interpretations) was relevant to the assessment of probative value.

21. [79]

    The respondent relied on the approach of Blanch J who observed that:

22. [80]

    By way of contrast, Simpson J took the view:

23. [81]

    Consistently with that approach, in R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238, Simpson J observed at [196] – [198]:

24. [82]

    Burton was not referred to in IMM, but XY (2013) was. By majority the construction of s 137 in XY (2012) was preferred over that in Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507.

25. [83]

    The issue which fell to be determined in IMM was whether, in determining the "probative value" of the evidence for the purposes of each of ss 97(1)(b) and 137, the trial judge ought not to have proceeded upon the assumption that the jury would accept the evidence in question. The majority relevantly held that:

26. [84]

    That approach is consistent with that discussed by Simpson J in both XY (2013) and Burton.

27. [85]

    It follows that in undertaking the assessment of probative value under s 137, the evidence having to be taken at its highest, requires an assumption that it is accepted by the jury on the basis for which the Crown contends. That there are other inferences which might be drawn by the jury, is not relevant to the s 137 exercise.

28. [86]

    In all of those circumstances, the evidence cannot be excluded under either s 135 or s 137. Its prejudicial effect is not unfair and it does not outweigh its probative value.

The pretext conversations

1. [87]

   Under authority of a warrant on 24 June 2010 the complainant telephoned the respondent. After identifying herself the conversation continued:

2. [88]

   The Crown also relied on subsequent calls when the complainant spoke to the respondent's wife and his secretary, who provided her with information on his authority, to which it is not presently necessary to turn. The Crown case was that the content of the four conversations revealed a consciousness of guilt, which supported an interpretation that what was said amounted to admissions.

3. [89]

   In issue between the parties was the relevance of these conversations, it only being evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding, which is admissible under s 55(1). That section also provides at s 55(2):

4. [90]

   The respondent’s case was that what he had said was not capable of constituting admissions; that what had been said was inherently ambiguous and equivocal; and that he had not responded to any specific allegations or offences with which he had been charged, or indeed any offence, sexual or otherwise.

5. [91]

   His Honour concluded that the pretext conversations were not admissible under s 55, because (at p 31):

6. [92]

   On appeal the question of whether his Honour was correct in coming to this conclusion was in issue.

7. [93]

   In resolving whether his Honour erred, it is necessary to begin with a consideration of the word “admission” which is defined in the Dictionary to the Evidence Act to mean “a previous representation” that is:

8. [94]

   “Representation” is there defined to include:

9. [95]

   The respondent conceded that a previous representation can amount to an admission, if it relates either to a particular count, or is a general admission (see Rolfe v R [2007] NSWCCA 155; (2007) 173 A Crim R 168 and R v Centraco [2005] NSWCCA 11). He contended, however, that he had not made any admissions at all.

10. [96]

    It was also conceded that where evidence relied on by the Crown was open to more than one interpretation, or inference, it was not inadmissible, even if one interpretation or inference was consistent with innocence (see R v Ali [2015] NSWCCA 72). The respondent contended, however, that his Honour was correct in concluding that what he had said in the pretext conversation lacked the capacity, on any interpretation, to amount to an admission.

11. [97]

    There is certainly no reference in the conversation to any sexual misconduct but, nevertheless, what the respondent said is, on its face, adverse to his interests in the outcome of these proceedings, given certain of his representations.

12. [98]

    While it is not in issue that the complainant was, when she was a child, the respondent’s patient, in resolving the question over which the parties joined issue, as to whether those representations amounted to admissions, it could not be overlooked that after some 28 years, when he received a telephone call from the complainant “out of the blue”, as he submitted, the respondent remembered the complainant. That was so even though she had been only 11 years old when he came to treat her for short sightedness. The respondent’s submission, that in those circumstances it would be “almost impossible for a jury to infer or assume that there was a meeting of minds during that conversation”, could not be accepted.

13. [99]

    It is in that context, that what the respondent said must be considered. The respondents first representation was:

14. [100]

    Given that the respondent remembered the complainant, contrary to his case, it must be accepted that one interpretation which is, undoubtedly, open is that his understanding was adverse to his interests in these proceedings. The conversation continued:

15. [101]

    When the respondent said that he should get the complainant’s record and talk to her from his rooms, he was no doubt seeking to end the conversation. His conduct, however, in light of the memory he had of the complainant and the understanding he had revealed as to her need to know what had gone on at his offices, in not denying that he had done things to the complainant in his rooms, which he ought not to have done, given her then age, is, also capable of being found by the jury to be a representation adverse to his interests in these proceedings and hence an admission.

16. [102]

    That being so, it follows that his Honour erred in excluding the evidence under s 55 as not having the capacity, if it were accepted, of having a rational effect (directly or indirectly), upon the assessment of the probability of the existence of a fact in issue in these proceedings.

Sections 135 and 137

1. [103]

   Again, his Honour turned to consider other matters argued, if his conclusion under s 55 was wrong.

2. [104]

   The respondent gave evidence on the voir dire. His Honour described that evidence at pp 24 - 29 to be:

3. [105]

   His Honour concluded at pp 33 – 34:

4. [106]

   Contrary to these conclusions, it must be accepted that the respondent’s admissions, taken at their highest, have considerable probative value. His evidence on the voir dire is not relevant to that assessment. Their actual probative value will depend on the interpretation which the jury places on what was said and what inferences are drawn from the admissions and any other evidence which might cast light on them. The assessment of their probative value at this stage, cannot proceed on the basis of the more benign available interpretations of what was said, for which the respondent contended.

5. [107]

   There it was explained at [37] that the balancing exercise required by s 137 cannot be undertaken without consideration of any explanation an accused person might seek to advance, to nullify the adverse inferences that would otherwise arise from admissions. It is to this assessment that the respondent’s evidence is thus relevant.

6. [108]

   The respondent’s case was that his circumstances were akin to those dealt with in R v Cook, where evidence of flight was sought to be relied on by the Crown as consciousness of guilt. That evidence was rejected, because it was concluded that the probative value of the evidence was outweighed by its prejudice.

7. [109]

   The admission of the disputed evidence in R v Cook was found to put the accused in the position of explaining his conduct in such a manner as would disclose the commission of other offences. It was concluded at [48] that unfair prejudice would thus flow from admission of evidence of flight as revealing a consciousness of guilt, because the admission of the evidence put the appellant in “the awkward position” of having to not only disclose previous criminal offences, but offences with a disturbingly close relationship to the offence with which he was charged. In the result it was found that the prejudicial effect was unfair, and that it outweighed the probative value of the Crown evidence.

8. [110]

   This is a different case.

9. [111]

   Here it is not evidence of the commission of other offences which the respondent would disclose, if he was to advance the explanation he gave on the voir dire for what he said in the pretext conversations. What would be revealed would otherwise be inadmissible against him, his explanation resting as it does firstly, on past police investigations into his dealings with the complainant, which did not lead to any charges being laid against him and secondly, past allegations of unspecified offending by the complainant’s sister, which have also never been pursued against him.

10. [112]

    That his explanations would be inadmissible, unless raised by him, is not of itself a basis on which a finding of unfair prejudice can rest. In R v Taranto [1999] NSWCCA 396, for example, the respondent had been tried on charges of wounding with intent to murder, and, alternatively, malicious wounding with intent to do grievous bodily harm. Evidence that after the commission of the offence, one of the appellants had stayed away from home for some time, and when police attended at his home he ran away and hid inside the roof space of a garage was tendered as demonstrating consciousness of guilt. The explanation given was that the appellant faced unrelated charges of goods in custody, possession of a prohibited drug and possession of an unlicensed pistol, but still the evidence of his seeking to avoid apprehension was admitted. On appeal that was found not to have involved error.

11. [113]

    Here the respondent’s explanation does not raise problems of the kind dealt with in Cook, namely not only other offending, but “offences with a disturbingly close relationship to the offence with which he was charged”. A finding that the respondent is in a similar position to the accused in Cook is thus not open. Nor is the conclusion that the probative value of the respondent’s admissions is outweighed by its prejudicial effect.

12. [114]

    The respondent's explanation does not nullify the adverse inferences that might otherwise arise from his admissions. In so far as his explanation depends on past allegations of offending against the complainant, it is capable of being viewed as supporting both the complainant's evidence and the interpretation of the conversations for which the Crown contends, because it is consistent with the complainant having made past complaint about his offending. In so far as the explanation rests on past allegations of unspecified conduct by the complainant’s sister, while prejudicial in a way that directions might not address, it was not open to find that such prejudice outweighs the probative value of the pretext conversations.

13. [115]

    It must, accordingly, be concluded that the pretext conversations do have real probative value and that while their receipt would be prejudicial, as would any other evidence which tends to establish that the respondent committed the offences charged, it would not be unfairly prejudicial. Nor is their probative value outweighed by the danger of unfair prejudice to the respondent.

Conclusion

1. [116]

   In those circumstances, I consider that that both the complaint evidence and the evidence of the pretext conversations is admissible and that, accordingly, justice requires that the appeal be upheld.

Orders

1. [117]

   For those reasons, I would order that:

   1. (1)

      The appeal be upheld.

   2. (2)

      The rulings of 18 and 24 November 2015 be set aside.

   3. (3)

      Adjudge that the complaint evidence of the complainant and the three witnesses, MG, RB and SS, and the evidence of the four pretext telephone conversations are admissible.

   4. (4)

      Otherwise remit the matter to Craigie SC DCJ for further hearing.