R v SK;SK v R [2011] NSWCCA 292 (1 April 2011)

Last Updated: 23 November 2012

Court of Criminal Appeal New South Wales

Case Title:	R v SK;SK v R
Medium Neutral Citation:	[2011] NSWCCA 292
Hearing Date(s):	27 September 2010
Decision Date:	01 April 2011
Jurisdiction:
Before:	Giles JA at 1 Latham J at 2 Rothman J at 44
Decision:	Crown appeal allowed Applicant’s application dismissed
Catchwords:	CRIMINAL LAW - evidence - tendency - admissibility and relevance - for particular purpose - sexual offences - whether evidence has significant probative value - whether there would be specific prejudice to the applicant in a joint trial
Legislation Cited:	Criminal Appeal Act 1912 Evidence Act 1995
Cases Cited:
Texts Cited:
Category:	Interlocutory applications
Parties:	SK - (Applicant) Regina - (Crown Respondent)
Representation
- Counsel:	Counsel R Sweet - (Applicant) J Pickering - (Crown Respondent)
- Solicitors:	Solicitors Galloways - (Applicant) S Kavanagh - Solicitor for Public Prosecutions - (Respondent)
File number(s):	2009/141735
Decision Under Appeal
- Court / Tribunal:
- Before:	Syme DCJ
- Date of Decision:	24 August 2010
- Citation:
- Court File Number(s)
Publication Restriction:

JUDGMENT

1. GILES JA: The reasons of Latham J, which I have had the advantage of reading in draft, well express my reasons for joining in the orders made on 27 September 2010, and I agree with them.
   
2. LATHAM J: SK sought leave to appeal pursuant to s5F(3)(a) of the Criminal Appeal Act 1912 against an interlocutory judgment by Syme DCJ (the Judge), the effect of which was to allow the admission of tendency evidence at the applicant's trial in respect of sexual offences allegedly committed against three female complainants (KD, WS, and DiS). The applicant also sought leave to appeal against the Judge's refusal to order separate trials in respect of those three complainants.
   
3. The Judge also ordered that the applicant's trial for offences against a fourth male complainant (DaS) be severed from the remainder of the counts in the proposed indictment. The Crown appealed pursuant to s5F(2) of the Criminal Appeal Act against the order for separate trials and against the Judge's finding that the evidence of DaS was inadmissible as tendency evidence in the trial relating to the complainants KD, WS and DiS.
   
4. The Court heard and determined both appeals on 27 September 2010. It was accepted by the parties that the ruling on the admissibility of the tendency evidence and the orders regarding separate trials are inextricably linked. The Crown appeal was allowed and the applicant's application was dismissed. The Court ruled that the evidence of all four complainants was admissible as tendency evidence in the applicant's trial on all counts. These are the reasons for those orders.
   

The Nature of the Tendency Evidence

5. The argument proceeded before the Judge on the basis that an indictment containing 19 counts would be presented against the applicant at trial. The counts were variously expressed as indecent assaults, acts of sexual intercourse and attempted sexual intercourse between 1980 and 2003. The applicant, now 50 years of age, is the uncle of three of the complainants (WS, DiS and DaS) and the second cousin of KD. All of the complainants were between the ages of 6 and 13 years at the time of the alleged commission of the offences. WS, DiS and DaS are siblings.
   
6. In each case the sexual activity occurred in the applicant's home during regular family gatherings. The applicant was living at his parent's home at all relevant times and had ready access to television, videos and music attractive to children. These facilities were available in the applicant's bedroom and in the lounge room. The Crown case is essentially that the applicant used these facilities to groom the children and to lure them into his bedroom for the purpose of sexually assaulting them. A number of counts in the indictment represent examples of such conduct. The Crown also contends that the applicant's pattern of behaviour, his state of mind and the position he occupied in the family in relation to the complainants, enabled the abuse to continue over a number of years and over two generations of young family members.
   
7. The tendency notice served by the Crown referred to events the subject of charges and to other events not the subject of charges. The tendency sought to be proved is the applicant's tendency to show a sexual interest in female and male children, aged 14 years or below, who were related to him and who were visiting his home; to remove, or cause to be removed for sexual purposes, articles of clothing of those female and male children; to touch in a sexual manner those female and male children in circumstances where the applicant invited each complainant to join him in bed, under the bedclothes in his bedroom; to engage in touching in a sexual manner those male and female children whilst those children were watching television or videos; to direct those female and male children to touch him in a sexual manner and to engage in sexual intercourse with those female and male children.
   

The Challenged Rulings

8. The Judge heard the evidence of the complainants and received their statements into evidence on the voir dire.
   
9. The Judge addressed the question of the probative value of the evidence, firstly by reference to the reasonable possibility of concoction. Each of the complainants said in the course of their evidence that they had not discussed the details of their evidence with each other.
   
10. The evidence on the voir dire established that DiS and WS, who were sisters, gave accounts to the Department of Community Services in 2003 of the substance of their allegations, absent any awareness of allegations relating to KD. The allegations contained in their respective complaints to the Department and to the police in 2008 were consistent.
    
11. In particular, DiS and WS confirmed in their evidence that they had not discussed their allegations in detail because of their age, their shame, and their embarrassment, independently of the cultural taboo surrounding the discussion of sexual matters.
    
12. DaS made a complaint to the Department in 2005 and to the police in January 2009. In 2004, he told his sisters that the applicant had taken him to his room, into his bed, and had forced DaS to touch the applicant and that the applicant had touched DaS. DaS was not told the details of the allegations made by his sisters or KD.
    
13. Further, the evidence established that KD made a statement to police in late 2008, after learning that the DiS and WS were in the course of making police statements. She was unaware of their allegations, other than that they related to abuse by the applicant. KD had previously complained to her sister in 1993 and to her mother in 2004, but she had never spoken to any of the other three complainants regarding the details of her, or their, allegations before making her statement to police.
    
14. KD had been in contact with DiS and WS by way of Facebook in 2008, although she had not seen them for many years. In 2008 she made a comment on Facebook, namely "I know what happened to you girls". In her evidence, KD explained that she had been told by a relative of the 2003 complaints by DiS and WS to the Department, but that she knew nothing further about the details of the allegations.
    
15. KD was, at the time of making her statement to police in 2008, 13 years older than WS, 15 years older than DiS and 20 years older than DaS.
    
16. The Judge accepted this evidence, and the absence of any extraneous motive for concoction, in reaching the conclusion that there was no reasonable possibility that any of the complainants had fabricated their accounts or that any of the accounts were contaminated by their association with each other or through other family members.
    
17. Having dealt with that issue, the Judge accepted that the evidence of the three female complainants established that the applicant had a tendency to have a sexualised interest in female children under the age of 14 years, and that the interest was acted upon by the applicant taking those children into parts of his family home, and acting in a generally sexually inappropriate way whilst he occupied a position of trust as a family member.
    
18. Whilst accepting that the evidence of DaS was in no way infected by the evidence of the three female complainants, the Judge determined that "because of his gender difference", tendency could not be "sustained" in relation to his evidence and that the evidence of the female complainants was not admissible as tendency evidence in respect of the two counts on the indictment alleging indecent assaults against DaS. The order for a separate trial in relation to those counts followed upon this finding.
    
19. Next, the Judge dealt with the submission advanced on behalf of the applicant that the tendency evidence would be misused by the jury, although no specific type of prejudice was identified by that submission. The Judge determined that, "although there may well be some prejudicial effect", namely a "marked antipathy towards the accused", the evidence was very significant and highly probative, such that it substantially outweighed any prejudicial effect.
    

The Applicant's Grounds

Error in Concluding that the Probative Value of the Evidence Substantially Outweighed the Prejudicial Effect.

20. The substance of the applicant's submissions on this ground is that the Judge expressed some reservations with respect to the probative value of the evidence, and that the reservation was inconsistent with her Honour's finding that the evidence had significant probative value. In addition, the applicant submits that the temporal difference between the events alleged by KD and WS (8 years), and between the events alleged by DiS and WS (12 months) is indicative of the limited capacity of the evidence in each case to rationally affect the probability that the applicant committed sexual assaults upon any of the complainants.
    
21. The capacity of the evidence to establish any tendency is challenged on the basis that the stated tendency is of such a general nature that it "provides a handicap to that evidence having significant probative value"; R v Ford [2009] NSWCCA 306 at [53]. The applicant observes that it is not uncommon for sexual assaults to take place in an accused person's home.
    
22. The Judge's asserted reservation about the probative value of the evidence arises out of this remark: -
    

There are cases where similarities in evidence, included in a tendency statement, are so overwhelming as to amount to what used to be called similar fact evidence if it shows a striking similarity between the acts alleged. There will be cases where similarities are of so little moment as to render the evidence probative of nothing. And there are cases and this is one such case in my view, where reasonable minds may differ as to the extent to which proof of one fact or circumstance may rationally affect the assessment of the probability of the existence of another fact.

It is therefore necessary to look at the issue of concoction. If there is a reasonable possibility of concoction, that would suggest that the evidence might be contaminated, [and] it must be withheld from the jury because that risk deprives the evidence of its significant probative value regardless of its similarity. (italics not in original)

23. Her Honour's comment italicised above is reminiscent of what Simpson J said in R v Fletcher [2005] NSWCCA 338 at [35], [36], [49] and [50] :-

35. ..... the s97(1) exercise is predictive and evaluative, and is not a scientific exercise with a clear or rigid answer, or with only one correct answer - reasonable minds will, on occasions, arrive at different results following the evaluative and predictive exercise. The other is that, where evidence "to be adduced" is relevant to the exercise, the exercise must be undertaken on the assumption that that evidence will be given substantially as anticipated.

36. A decision to admit or reject evidence tendered under s97(1) must, obviously, be a decision based upon the information and material available to the judge at the time the decision is made. It is a decision involving "a degree and value judgment" (a phrase drawn from remarks made in the High Court in Fleming v Hutchinson; Conroy v Veit (1991) 66 ALJR 211, when refusing special leave to appeal in an application which otherwise has no bearing upon the present case). Sackville J appears to have taken a similar view in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51. Such a decision is reviewable on appeal only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499; see also R v Milton [2004] NSWCCA 195 at [33] and Jacara at [75].

49 In relation to each count on the indictment, the ultimate fact in issue was whether the appellant conducted himself as alleged by the complainant. But they are not the only facts in issue. Just what facts are in issue in any case depends upon the facts and circumstances alleged by the prosecution (including facts and circumstances from which the prosecution would seek to have inferences drawn) and any responses made by the person accused. If evidence tends to elucidate (i.e. rationally affect the assessment of the probability of any such fact), then that evidence has probative value. Any fact upon which the prosecution relies to establish the offence charged is, of course, a fact in issue, even where it is not disputed by the accused. A lay person may well be forgiven for thinking that evidence of a tendency to sexual misconduct with adolescent boys could rationally affect the assessment of the probability that the appellant sexually misconducted himself with the complainant as an adolescent.

50 But this is where caution needs to be exercised. While it may be tempting to think, for example, that evidence of a sexual attraction to male adolescents has probative value in a case where the allegations are, as here, of sexual misconduct with a male adolescent, an examination must be made of the nature of the sexual misconduct alleged and the degree to which it has similarities with the tendency evidence proffered. There will be cases where the similarities are so overwhelming as to amount to what, in pre-Evidence Act days was called "similar fact" evidence, showing "a striking similarity" between the acts alleged; and there will be cases where the similarities are of so little moment as to render the evidence probative of nothing. And there will be cases where reasonable minds may differ as to the extent to which proof of one fact or circumstance may rationally affect the assessment of the probability of the existence of another fact.

24. To my mind, her Honour is saying no more than that the instant case fell somewhere between the two extremes of evidence advanced as tendency evidence. There was nothing strikingly similar about the sexual acts themselves or the surrounding circumstances, but there was an underlying pattern to the applicant's conduct towards the complainants. The Judge merely recognised that the exercise she was required to undertake was an "evaluative and predictive" one.
    
25. There was no inconsistency between the Judge's remark and the finding that the evidence had significant probative value. The applicant's submissions overlook the distinction between a finding that evidence is capable of rationally affecting the probability that the applicant committed the assaults, on the one hand, and a finding that the jury would ascribe to that evidence, when taken together with other evidence in the trial, probative value to a significant degree. The former is an evaluation by the trial judge, having regard to the test for relevance in s55(1) of the Evidence Act 1995, whilst the latter is predictive of the significance of that evidence in the jury's deliberations.
    
26. Contrary to the applicant's submissions, the lapse of time between the alleged assaults upon the respective complainants is, in my view, a powerful factor in reasoning towards the commission of these offences by the applicant. A significant feature of the Crown case is the applicant's reliance upon social visits to the home he occupied with his parents, by members of his extended family, in order to obtain access to young children. The complainants allege that the applicant commenced sexually assaulting them at about the age of 6 or 7, and ceased assaulting them about the age of 13. According to the Crown case, when KD reached an age when the applicant could no longer exercise influence over her, he turned his attention to the next generation of young children, DiS and WS. Similarly, at about the time that DiS and WS commenced to assert themselves, the applicant turned his attention to DaS. Far from depriving the evidence of its capacity for probative value, the temporal gaps are an integral part of the applicant's underlying pattern of behaviour.
    
27. The fact that the assaults are alleged to have occurred in the applicant's home is but one feature of the underlying pattern. That feature in isolation does not establish that the tendency evidence was of such a general nature that no meaningful tendency could be drawn from it. The reference to Townsend v Townsend [2001] NSWCA 136 in R v Ford, upon which the applicant relies, ought be understood in the context within which that discussion emerged in the former case. The proposed tendency evidence in Townsend (a denial by the respondent's former wife of violent behaviour during their marriage) bore no relationship at all to the issue in those proceedings (whether the respondent had caused a back injury to the appellant in the course of a violent argument about marital separation).
    
28. In the absence of any prejudicial effect being identified by the applicant, beyond the generic prejudice inherent in tendency evidence (that a person with an established tendency will yield to that tendency whenever the opportunity arises), the applicant has not demonstrated that it was not open to the Judge to have found the test under s 101 was satisfied; see R v Milton [2004] NSWCCA 195 at [33]. The applicant does not suggest how the jury might use the tendency evidence in any way logically unconnected with the issue in the trial, that is, whether the applicant committed the assaults against each complainant.
    
29. I would reject this ground of the application.
    

Error in Concluding that there was no Specific Prejudice to the Applicant in a Joint Trial and that the Allegations by KD, WS and DiS could be Tried Together.

30. These grounds may be briefly dealt with, in the light of the foregoing.
    
31. The applicant contends that the Judge erred in stating in the course of her judgment that "no specific risk of what prejudice the accused will suffer, other than this generality has been referred to." The source of this error is said to be the oral and written submissions of counsel for the applicant, wherein a number of cases were cited in support of the proposition that there was a "real risk that the evidence might be misused by the jury in some unfair way". The applicant's counsel submitted that "the danger of unfair prejudice is the risk that if they are all heard together the jury would know all about the other allegations and knowing of that conduct the jury may be diverted from a proper consideration of the evidence and simply assume the accused's guilt."
    
32. The written submissions handed up by counsel for the applicant during the proceedings below included references to Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528, in respect of the real risk of prejudice arising from a joint trial, De Jesus v The Queen [1986] HCA 65; (1986) 68 ALR 1, in so far as "sexual cases are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard", and Hoch v The Queen [1988] HCA 50, in support of the proposition that evidence of criminal propensity "is prejudicial to an accused for it may be wrongly used as sufficient by itself to show that the offence charged was committed."
    
33. Further, in the written submissions, the applicant's counsel referred to R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434, a case in which criminal convictions for fraud, following pleas of guilty, ten years before a trial for similar offences, were held inadmissible by this Court, on the basis that the jury would be diverted from a proper consideration of the accused's defence and simply assume his guilt.
    
34. Notwithstanding these submissions, the applicant did not identify how the risk of misuse of the evidence by the jury could arise. It is no answer to make general statements about the arousal of prejudice. A jury's antipathy towards an accused, assuming that the accused is guilty and failing to properly consider a defence are all potential by-products of tendency evidence. In that sense, the nature of tendency evidence is inherently prejudicial, hence the need for strong directions, including the requirement that the tendency evidence be proved beyond reasonable doubt. It is not however, prejudicial simply because it tends to prove the commission of the offences. That constitutes, subject to proper directions, appropriate use of the evidence, not its misuse.
    
35. The pre Evidence Act cases cited by the applicant (Sutton, De Jesus and Hoch) are of no assistance to the applicant on this issue. The law in this State is as discussed in DJV v R [2008] NSWCCA 272. The facts in Watkins amply demonstrate why the proposed tendency evidence in that case was overwhelmingly prejudicial.
    
36. I agree with the Judge that the applicant failed to identify any specific prejudice for the purposes of determining the test under s101. As I have already noted, on the hearing of the application, the parties acknowledged that the admissibility of the tendency evidence dictated the fate of the separate trial application.
    

Error in Concluding no Possibility of Concoction.

37. The applicant essentially disputes a finding of fact by the Judge. The high point of the submissions on this ground is that the filial relationship between WS and DiS, including their occupation of the same bedroom for a number of years, rendered their denial of any detailed discussion of the applicant's conduct towards each of them "unbelievable". The same submission is made with respect to the allegations made by KD.
    
38. Her Honour considered the same submissions after hearing the evidence of the complainants and the extensive cross-examination on this issue. The applicant does not submit that the Judge applied the wrong test or that the finding was not open to her. I would dismiss this ground of the application.
    

The Crown Appeal

39. As noted above, the Judge determined that the evidence of DaS did not qualify as tendency evidence in the trial of the counts involving the female complainants, and that the evidence of the female complainants was not admissible as tendency evidence in the trial concerning DaS, "because of his gender difference". Arising out of that gender difference, the assaults alleged against the applicant by DaS involved mutual forced masturbation, that is, touching of the child's penis by the applicant and requiring the child to touch the applicant's penis. The Judge acknowledged that there were similarities between the allegations made by the female complainants and those made by DaS.
    
40. The Crown relies principally upon R v Fletcher, and in particular the comments of Simpson J at [52] and [57]. In Fletcher, the tendency evidence established a pattern of behaviour on the part of the accused. The argument advanced by the accused in Fletcher focused upon the nature of the sexual conduct alleged in each case and the date of its alleged perpetration. Simpson J noted that: -

the approach taken on behalf of the appellant is unduly confined, and disguises the true nature of the tendency evidence the DPP sought to adduce. What was contained in the tendency material was capable of establishing a pattern of behaviour on the part of the appellant, incorporating at least the following features. [Those features were the similar ages of the complainants at the time of the alleged conduct, the fact that they were members of practising Catholic families, who were befriended by the accused and who served as altar boys.]

41. There is considerable force in the Crown's submission that the evidence of DaS was entirely consistent with the proposed evidence of the female complainants, in that it demonstrated a modus operandi or pattern of behaviour directed towards young relatives between the ages of 6 and 12 years, who visited the premises where the applicant lived with his mother. When each of the complainants reached the age of 14 years, or thereabouts, the applicant ceased his offending towards them in turn.
    
42. Upon WS and DiS attaining the age of 13 or 14, the only remaining children in the extended family were two boys, one of whom was DaS. Thus it was that the applicant turned his attention to DaS and continued that pattern of behaviour, according to the Crown case. Gender was no part of the Crown's application to rely upon tendency evidence. Rather, the tendency evidence acquired its force from the age of the respective complainants, the applicant's ability to control the environment within which the abuse occurred and to exercise influence over each complainant. The decision of this Court in Ford demonstrates that evidence is admissible under s 97(1) if it reveals a tendency to act in a particular way.
    
43. In my opinion, her Honour was incorrect in rejecting the evidence of DaS as tendency evidence. The inevitable consequence of this finding is that the trial of the applicant ought proceed on all charges.
    
44. ROTHMAN J: I have had the advantage of reading, in draft, the reasons of Latham J, for the orders made by the Court on 27 September 2010. I agree with those reasons and, subject to that which follows, they express my reasons for joining in the orders already made. The following comments are additional to those reasons and are not intended in any way to detract from them.
    
45. During the course of the reasons with which I agree, there is a reference to the concept, often referred to in other judgments, of the "pattern of behaviour" and the "similarities between allegations", being a comparison between the "tendency material" and the conduct that gives rise to the charges.
    
46. Section 97, however, does not require, at least expressly, "similarities in the events or the circumstances in which they occurred" (see s 98 of the Evidence Act, hereinafter "the Act"). The tendency rule is satisfied by evidence of character, reputation or conduct, or a tendency, to prove a tendency to act in a particular way. Section 97 of the Act is not concerned with the improbability of coincidence, which is the concern of s 98 of the Act.
    
47. Before either s 97 or s 98 of the Act is applicable, material must be relevant. The proposed evidence must be material which "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue": s 55 of the Act. Prima facie, all relevant evidence is admissible. Sections 97 and 98 then exclude evidence that would otherwise be relevant, unless the evidence satisfies the preconditions there prescribed.
    
48. There is a distinction between tendency evidence and coincidence evidence (previously, and often still, called similar fact evidence) even though, often, the evidence may be of the same character. The difference is the use to which the evidence is put. Tendency evidence is used to support a process of reasoning, namely, because a person has a tendency to act in a particular way, the person is more likely to have acted in that particular way on this occasion. Similar fact evidence is used to prove the improbability that the alleged events occurred coincidentally.
    
49. Tendency evidence, and tendency reasoning, is not admissible, or able to be used, unless it has significant probative value. The tendency must go beyond a propensity to engage in crime, or even criminal conduct of a general kind, but must show a propensity to engage in criminal conduct of the kind charged, or conduct associated with it. It is, however, unnecessary to have a striking pattern or similarity between the charged incident and the other incidents upon which it is sought to prove a tendency.
    
50. In R v Ford [2009] NSWCCA 306, Campbell JA, with whom Howie J and I agreed, observed:
    

"The second flaw is the judge's apparent view that the tendency evidence must itself show a tendency to commit acts that are closely similar to those that constitute the crime with which a particular accused is charged. That is not so. All that a tendency need be, to fall within the chapeau to section 97(1), is 'a tendency to act in a particular way'." (At [38].)

Later, at [125], Campbell JA said:

"In my view there is no need for there to be a 'striking pattern of similarity between the incidents'. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged. In my view, it meets that test."

(See also Regina v PWD [2010] NSWCCA 209 at [57]- [65], per Beazley JA, with whom Buddin J and Barr AJ agreed.)

51. Because of the heavy burden that the evidence must have a significant probative value, and utilising the pre-Evidence Act judgments as a guide, it is necessary to show more than a general propensity. Thus, evidence of heterosexuality, of itself, is not significant to a sexual offence against the other gender. And evidence of homosexuality, of itself, is not significantly probative of a charge of sexual misconduct involving the same gender. As a consequence of the need to show a particular tendency, often a notice of tendency evidence is drafted in a way which makes it difficult to determine whether the evidence is sought to be adduced as tendency evidence or similar fact/coincidence evidence.
    
52. In this case the tendency sought to be proved is the applicant's tendency to act in a particular way and/or to have a particular state of mind, namely:
    

"(i)to show a sexual interest in ... children of relatives aged 14 years or below that were visiting his home;

(ii)in connection with his [aforesaid] sexual interest ... to remove, or cause to be removed, for sexual purposes, articles of clothing;

(iii)to touch [such persons] in a sexual manner;

(iv)... in bed, under bed clothes in his bedroom;

(v)... whilst ... engaged in watching television or videos;

(vi)to direct [such] children ... to touch him in a sexual manner;

(vi)to engage in sexual intercourse with [such] children of relatives...."

53. For all the reasons given by Latham J, each person's evidence, sought to be adduced for this purpose, is evidence that the applicant has a tendency to act in the particular way described and has significant probative value. It is admissible under s 97 of the Act.
    
54. The evidence is each alleged victims' version of offences and, if otherwise drafted or notified, may have been able to be utilised as coincidence evidence, as well. The allegations in each are strikingly similar in the circumstances of their alleged occurrence. But that should not confuse the test in s 97 of the Act.
    

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