Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Croft v R [2021] NSWCCA 146 Hearing dates: 21 June 2021 Date of orders: 5 July 2021 Decision date: 05 July 2021 Before: Basten JA at [1]; Price J at [42]; Garling J at [43] Decision: (1) Grant the applicant leave to appeal. (2) The appeal is dismissed. Catchwords: CRIME – trial procedure – prosecution evidence in rebuttal – whether splitting case – whether rebuttal of good character evidence – defence evidence that accused not violent – defence not foreseeable – evidence of angry behaviour in rebuttal – relationship between tendency evidence and character evidence CRIME – appeals – directions to jury – jury sought explanation of "reasonable doubt" – whether judge wrongly described meaning of term as a question of fact – whether apology for lack of assistance erroneous – whether need for comparison with civil standard Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW), ss 63, 78, 81, 578A Evidence Act 1995 (NSW), s110 Cases Cited: The Queen v Chin (1985) 157 CLR 671; [1985] HCA 35 The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 Texts Cited: R Weinstein, J Anderson, J Marychurch and J Roy, Uniform Evidence in Australia (3rd ed, Lexis Nexus Butterworths, 2020) par 110-14. Category: Principal judgment Parties: Geoffrey Croft (Applicant) Regina (Respondent) Representation: Counsel: Mr T Game SC / Ms A Cook (Applicant) Ms M Millward (Respondent) Solicitors: Harris Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2017/65075 Publication restriction: Prohibition on publication of names or matter which could identify the complainants/victims: see s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW). Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 22 November 2019 Before: McLennan SC DCJ File Number(s): 2017/65075 Judgment 1. BASTEN JA: On 30 September 2019 the applicant, Geoffrey Croft, was found guilty of four charges of indecent assault on a male person, contrary to s 81 of the Crimes Act 1900 (NSW), as in force in 1977 when the four offences were alleged to have been committed. Although the young person is now an adult, the offences were committed when he was 12-13 years of age; as the publication of his name or matter which could identify him is prohibited, pursuant to the Children (Criminal Proceedings) Act 1987 (NSW), s 15A, and Crimes Act, s 578A, he will be referred to as "MM". The applicant was also convicted of three counts of indecent assault on a female victim (contrary to s 78 of the Crimes Act, as then in force), together with two counts of rape, contrary to s 63 of the Crimes Act. The offences took place between 1 February 1979 and 30 April 1980, when the victim ("FF") was 16 years of age. 2. At the time of the offending, the victims were wards of the State who had been placed by the welfare authorities with the applicant and his wife, Sandy Croft, at a rural property near Uralla on the northern tablelands. MM was present during two periods, the first being from 17 December 1976 until 28 January 1977; the second was from 26 August 1977 until 8 September 1977. At those times, MM and his twin brother were living at Renwick Boys Home at Mittagong. 3. FF was not at any stage in a home, but was with foster parents from a young age. However, in early 1979 the circumstances of her long-standing foster parents changed and she was removed to live with the applicant and his wife on their property, Cleggswood, south-west of Armidale. She stayed there for 12 months before being moved again, to stay with a relative in Sydney. 4. The applicant appealed against his convictions on two grounds which read as follows: "(1) It was an error to permit the Crown to lead evidence in reply. (2) It was an error to decline to provide the jury with any guidance about the meaning of "beyond reasonable doubt" and instead direct it that the meaning of the phrase was a "question of fact" for the jury to determine." 1. The confined nature of the grounds makes it unnecessary to give a detailed account of the evidence at the trial. However, it will be necessary to provide brief details of the evidence given by the two complainants in relation to the offending conduct. Prosecution case – MM 1. MM turned 12 in February 1976. Shortly before Christmas, he and his twin brother were sent from Mittagong to spend the summer holiday period with the applicant and his wife on their farm near Uralla. They flew to Armidale Airport where they were collected by the applicant. 2. During the period of December 1976-January 1977, MM and his brother were required to undertake physically demanding work on the applicant's farm. He said they worked from dawn to dusk. MM said that the applicant was very strict and he (MM) would be belted or hit if he did not keep up. He suffered from asthma and eczema which made the work conditions difficult. 3. A few days after their arrival, the applicant and his wife were in the dining room, with Mrs Croft sitting on the dining room table wearing a short dress so that MM could see her "private part". The applicant directed MM and his brother to remove their clothes and run around the table. They were then told to stop when they were positioned on either side of Mrs Croft and told to "pull our, our skins back on our dick, and lift our balls up." [1] The applicant and his wife then went to their bedroom. The boys could hear noises which MM later associated with sexual activity. 4. MM then became abusive towards the applicant and swore at him. The applicant responded by belting him, particularly around the head. On four occasions the applicant took MM to the shed, where he hit him with his belt and, on one occasion a stockman's whip, then removed his erect penis from his trousers, put it in MM's mouth and ejaculated. These events constituted counts 1-4 on the indictment. Once, before the indecent assaults occurred, the applicant hit MM a number of times with his belt and then urinated on him. 5. MM and his brother returned to the farm for a period of some 10 days in mid-1977. He did not return during the summer holiday at the end of 1977 (although his brother did), nor at any later time. Prosecution case – FF 1. FF went to live with the applicant and his wife in early 1979, at which time she was 16 years old. The applicant and his wife had an infant child and were expecting their second. FF ceased schooling when she arrived at the farm and spent the early days assisting the applicant, working from dawn until dusk on the farm. From about March or April 1979 a pattern developed whereby the applicant told FF that she needed to be punished, would take her to her room and tell her to lie on her face on her bed whilst he hit her with his belt at the base of her back and on her buttocks. At first, that was done over her clothes, but as time progressed, she was required to take off her jeans and underpants. The "punishment" took place when Mrs Croft was not at home. 2. In May 1979 the applicant hit the complainant with his belt six, seven or eight times, then said he was sorry and rubbed moisturiser into FF's skin. He moved his hands down to her vagina and put his finger in her vagina. (That action constituted count 5 on the indictment). 3. On a second occasion in June or July 1979 the punishment and subsequent application of moisturiser was repeated, the applicant putting his finger in her vagina (count 6) and then penetrating her with his penis (count 7). The applicant noticed there was blood on the sheets when she got up. About a week later, that conduct was repeated (counts 8 and 9). There were other occasions on which the applicant hit her with his belt and digitally penetrated her and some 10 further occasions of penile penetration accompanied by digital penetration. Evidence of that was led without objection as context evidence, but was not the subject of charges. FF stayed with the applicant and his wife for just under 12 months before being removed and taken to live at her sister's house in Sydney. 4. A common feature of the sexual activity alleged against the applicant with respect to both MM and FF was the use of violence. As the judge explained to the jury in the course of his summing up, "the evidence of the complainants allows you to conclude that the accused had, at the relevant time of these charges, a tendency to commit sexual acts in the context of inflicting violence masquerading as discipline." [2] Ground 1 – prosecution evidence in reply 1. It was a significant part of the prosecution case that both the acts of indecency with respect to MM and the digital and penile intercourse with FF were accompanied by acts of violence. 2. The applicant did not give evidence at his trial, but Mrs Croft did. Much of her evidence was contextual in a general sense, describing the circumstances of their relationship over several decades. She also gave specific evidence in relation to the events surrounding the times that MM and FF were at Cleggswood. In particular, she was asked if either MM or FF was forced to work, whether the applicant was a "disciplinarian" towards FF, and whether he demonstrated a bad temper towards her, all of which she denied. [3] In addition, the following questions were asked in chief: [4] "Q. Is he a bad tempered man? A. No, he's not a bad tempered man. He's very placid. No temper. No discipline. Q. What about a propensity for violence? A. No. No, no, no." 1. The defence called a further 11 witnesses, each of whom was asked in general terms whether the applicant was a disciplinarian, an aggressive or violent man, or a bad-tempered man. (They referred to the applicant as "Joe".) 2. For example, Mrs Croft's first cousin, Diane Sweeney, was called for the defence and asked in chief: [5] "Q. Is Joe a bad tempered man? A. No, not at all. Q. Is he an angry or aggressive man? A. No. Q. Have you ever known him to be a violent man? A. No." 1. The case for the accused commenced on the morning of 17 September 2019 and ran for two days. On the morning of 19 September, the prosecutor had advised counsel for the accused that he proposed to call evidence in reply. At the close of the case for the accused, his counsel noted there was a matter to be dealt with in the absence of the jury. Counsel for the accused, Mr Dennis, commenced: [6] "DENNIS: Yes, I'll start, your Honour. Your Honour, in the usual way, I wrote to my friend prior to the commencement of the trial indicating that I intended to lead evidence of good character. … It wasn't qualified, it was good character in general, and I asked my friend to reply to me in writing prior to the commencement of the trial would he wish to disclose to me anything by way of [rebuttal]. Your Honour, my friend has disclosed to me this morning there are two witnesses, your Honour, who are within the Crown brief but have not been called by agreement. I think your Honour needs to see those two statements before it can go further." 1. The judge was then handed statements of Leonard Berry and Gregory O'Neill. The judge then called on the prosecutor, who commenced with the chronology: "CROWN PROSECUTOR: My learned friend did contact me prior to the trial and asked if there was any material beyond what was in the brief that I would lead to seek to rebut good character. There was also a discussion about Mr Berry and Mr O'Neill. My learned friend told me that the identity was not in issue. It was not going to be in dispute that [MM, his brother and FF] were at the property and that they worked with the accused. It was then agreed that I would not lead that, the evidence of Mr Berry or Mr O'Neill. What has changed is that the character evidence which has been led has gone beyond what's traditionally known as good character and it led that he's not an angry man, not a violent man." 1. The exchange continued referring to the content of the statement from Mr Berry which described an incident at about the time FF was at Cleggswood when the accused was angry and aggressive. The prosecutor stated: "It's a relevant incident. It's at the relevant time where the accused has displayed a different attitude than the one portrayed by the defence character witnesses." The judge noted that both Mr Berry and Mr O'Neill had described related incidents, the latter referring to FF, where the accused had got angry, in the latter case issuing something which might be understood as a challenge to Mr O'Neill to fight him. The following exchange then took place with counsel: [7] "HIS HONOUR: First of all, I don't see either of those two things as specifically relating to character, as I would ordinarily understand it and, secondly, it relates to all of the evidence that has been led that the accused doesn't have a temper and this is evidence that he does. CROWN PROSECUTOR: Yes. HIS HONOUR: Mr Dennis, I would like to imagine that someone would describe me as having a good character. I would hope that my displays of temper, such as they have been, would not necessarily alter that opinion. I think the difference is fairly clear and the way in which this case has been developed by you, Mr Dennis, I think it's also clear don't you? DENNIS: Yes. HIS HONOUR: I think it can be led. I think it's relevant." 1. Mr Berry gave evidence that there were four properties on Athol Road near Balala, west of Armidale and Uralla. Mr Berry lived on Woodlawn, which his father was then managing. Two of the other properties were East Lynne, which was run by the O'Neill family, and Cleggswood owned by the Crofts. He said that Joe Croft would sometimes do work for him at Woodlawn. He would sometimes turn up with a young boy and also a girl, whom Mr Berry identified as FF. Mr Berry gave evidence of a morning when he heard Mr Croft's vehicle and saw it visit East Lynne. He said they had a lad, Greg O'Neill, who was 14, 15 or 16 at the time. [8] He described Mr Croft as then driving over to his property and coming through the gate and driving up to the house where he was working. Mr Berry said: [9] "A. … I had my head in the vehicle or whatever under the bonnet or something, and he proceeded to come towards me and I extricated myself from the vehicle and I turned around and he was a few yards from me, and I hadn't spoken to him at that stage and he hadn't spoken to me at that stage. He then said 'Bloody, fucking pigs,' and that surprised me. Q. Had you ever heard him speak in language like that before? A. Never. Q. What did you say? A. Something like 'What's wrong?' Or 'What's happened?' He repeated 'Bloody, fucking pigs,' and I think I probably then repeated again, 'What's wrong? What's happened?' He then said 'I've just put the karbosh(as said), or kibosh on young O'Neill.' And I think I said 'What? What did he do? What did he say?' Or 'What's wrong?' And he said 'I, I've barred him', or words to that effect, 'From coming to my place again. I don't want him corrupting my kids.' I think I then repeated, 'Why? What's he done?' or 'What's happened?' And he then repeated ' Nothing. But if he comes on to my place again, I'll kick his ass all the way home.' That's about it." 1. Gregory O'Neill gave evidence about the same incident in the following terms: [10] "A. Yeah, I – one night I remember riding my motorcycle up to Joe Crofts. … I was sitting on the veranda with a young girl probably about the same age as me. We were just talking and I rode home. I think it was Joe's – I can't remember whether if was Joe's mother or Sandra's mother that was staying at the house as well. I didn't enter the house. I rode home on my motorbike. The follow[ing] day Joe come to our place, approached me and he was sort [of] a bit aggressive, going off the handle a bit and I couldn't understand why. … I couldn't remember exactly what he was saying but he wasn't very happy. He was going off about me being up there. And then he hopped in his little Mini Moke, in his car, and he drove down to the gate. I hopped on my motorbike and I rode down to the gate to see what was wrong, what was so – why, why he was so upset. And when I got down to the gate with the – to our front gate, he hopped out of the car and he said, 'Do you want to have it out [where the bulls feed*]'. I remember that as clear as a bell. … HIS HONOUR Q. What did you understand that to mean? A. That to me is, do you want to have a fight. …. Do you want to have, have it out – a fight - as a fight in the paddock." (*Although the transcript was not clear as to what had been said to Mr O'Neill, the words used were clarified in cross-examination. [11] ) 1. The prosecutor dealt with this evidence in his closing address in the following passage: [12] "And yet the defence produced a series of witnesses starting with Sandy Croft to say he didn't dress like a cowboy. Well, you may have thought and been left with the impression, that those witnesses were trying just a bit too hard. Can you really believe, for example, that the accused never got angry. Never got angry. Members [of] the jury you may have thought that simply does not accord with your experience, your knowledge of people, your knowledge of the world, your common sense. Everyone at some point of time, gets angry. Now, just because someone gets angry doesn't mean they commit offences like this, but to say someone never gets angry you may have thought does not accord with your common sense. Now, you'll recall that the prosecution, I, called evidence in reply, that was the evidence of Mr Berry and Greg O'Neill, which at the time, and I hope it didn't, but at the time you might have thought, are they trying to clutch at straws. What it was really doing was to demonstrate that the accused at least on that occasion, did get angry and did threaten violence to Greg O'Neill. You'll recall Mr Berry's evidence that if he ever comes to my property again I'll kick his arse all the way home. It wasn't to say that he is necessarily an angry man or a violent man, it was to show that common sense approach you may have thought, that everyone … sometimes gets angry and so … that procession of witnesses who said never angry, were perhaps just trying that bit too hard. It was to demonstrate in my submission, and accord with your experience of people and your common sense, that the accused could get angry and threaten violence. And that that picture of the accused created by the defence witnesses might not be a completely accurate one. It does not of course, of itself prove the accused committed these offences but it does show that [MM's], in particular, [MM's] description of the accused being angry can be believed." 1. The first proposition put forward by the applicant was that the trial judge had failed to apply the principles governing the prosecution splitting its case. The written submissions set out the following passage from the joint reasons of Gibbs CJ and Wilson J in The Queen v Chin: [13] "The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen." 1. The applicant complained that the trial judge did not find circumstances which were "very special or exceptional", nor could it be said that they could not reasonably have been foreseen. The prosecutor had alleged that the appellant had a tendency to be violent and, further, the prosecution knew in advance that the appellant intended to call evidence of good character. 2. The applicable legal principle was more nuanced than suggested by the extract from Chin cited above. The joint reasons continued: "The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant …) and the need to give it could have been foreseen it will, generally speaking, be rejected. The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue." 1. Dawson J, with whom Mason J agreed, also identified a "guiding principle" that the prosecution should be allowed to reopen after the close of the defence case "only in exceptional circumstances", expressing the qualifications to the principle in language similar to that of the Chief Justice and Wilson J. [14] 2. The respondent relied upon three broad propositions in defence of the course taken at trial. It submitted, first, that the incident involving Mr O'Neill and Mr Berry was no part of its case against the applicant. It did not go to prove that the applicant committed any of the offences charged, nor did it support a tendency to commit sexual acts in the context of inflicting violence masquerading as discipline. It could not have been called in the prosecution case. 3. Secondly, as the trial judge noted, an outburst of aggressive behaviour on one occasion, unaccompanied by any actual violence, did nothing to suggest that the applicant was not a person of good character. It was not rebuttal of good character evidence. Further, an indication that good character evidence would be called did not suggest that evidence that he was never angry and never aggressive was reasonably foreseeable. 4. Thirdly, in leading evidence from witnesses for the defence that, to their knowledge, he had never been angry or aggressive, or exhibited bad temper, counsel did so with full knowledge of the evidence which, if called, Mr Berry and Mr O'Neill would give which would contradict that picture of the accused. 5. It followed, the respondent submitted, that by leading evidence of that kind the defence had painted an arguably false picture of the accused, which the prosecutor was entitled to rebut. The rebuttal evidence was, of itself, incapable of doing more than balancing the record. If the defence witnesses were to be believed, the evidence of the complainants was implausible. The further evidence called in reply by the prosecutor provided a basis for suggesting that the defence witnesses had overstated their case in a way which was not only inherently implausible, but, at least in its universal claim, was contradicted by Mr Berry and Mr O'Neill. That was consistent with the way in which the prosecutor sought to use their evidence in his closing address; there was no complaint about that, or the manner in which the evidence was left to the jury by the judge in his summing up. 6. The applicant contended that evidence that he was never an angry or violent man was both evidence of prior good character admitted pursuant to s 110 of the Evidence Act 1995 (NSW) and evidence admissible to contradict the tendency asserted by the prosecutor. That dual characterisation may well be correct. As noted in Weinstein et al, Uniform Evidence in Australia, "[c]haracter evidence, good and bad, typically employs tendency reasoning." [15] That is particularly so in respect of evidence which shows a person to be of good character "in a particular respect": Evidence Act, s 110(1). The tendency rule does not apply to such evidence, nor does it apply to evidence adduced to prove that an accused is not a person of good character in that respect: s 110(3). These provisions expressly recognise the close link between character evidence and evidence in rebuttal of good character on the one hand, and the tendency rule on the other. However, it does not follow that rebuttal evidence itself necessarily constitutes evidence which would have been admissible to support a particular tendency relied upon by the prosecutor. 7. Ground 1 should be rejected. Ground 2 – meaning of "reasonable doubt" 1. On its face the suggestion of error in declining to provide the jury with guidance about the meaning of "reasonable doubt" is an implausible ground of appeal. There is a long line of authority establishing that a trial judge should not elaborate upon, nor embellish, the time-honoured expression. [16] In the course of argument, it was suggested that instead of declining, at some length, to answer the jury's question about the meaning of "reasonable doubt", the judge should have adopted the course proposed in Dookheea at [41], of "contrasting the standard of proof beyond reasonable doubt with the lower civil standard of proof on the balance of probabilities." That practice, the High Court said, "is to be encouraged." 2. The ground articulated on behalf of the applicant, was, however, directed to a different issue. It alleged that the trial judge did not merely decline to provide the jury with the guidance it sought, but instead directed it that the meaning of the expression was "a question of fact for the jury to decide." That statement, the applicant submitted, was an error because "[t]he meaning of 'beyond reasonable doubt' is actually a question of law". [17] 3. The possibility that the jury would have been misled by being told that the meaning of the phrase was a question of fact, when it was a question of law, may be doubted. (If told that it was a question of law, they might have wondered why the judge, as the source of directions as to the law, could not or would not assist them.) However, the statement complained of is not expressed in the direction actually given. After noting that, contrary to a suggestion in the jury's question, he had not previously attempted to define the term, the judge said: [18] "There is a reason why I did not define it, and that I will not be defining it now and that judges do not. It is because what is a reasonable doubt is a matter for you. You are the judges of the facts and you decide what is or is not a reasonable doubt. From the point of view of the law, the words are everyday words, and the law is very clear that you are the judges of the facts, and you decide, and you alone decide what is a reasonable doubt. It is not a question that I, as the judge of the law, can answer. It is entirely a matter in your personal province. You are the independent adjudicators of the issue. It has to be your independent decision, and I am not permitted to provide any input at all as to what those words mean, because it is a question of fact. That is an unhelpful answer I am sure from your point of view, and it is a rather longwinded apology on my part, but you understand that the rationale for a judge not attempting to define what those words mean lies in the differentiation between my function as a judge of the law, and your function as judges of the facts." 1. Neither directly, nor by implication, did the judge suggest that the meaning of the phrase itself was a question of fact; rather, he made clear that determining what was a reasonable doubt involved an exercise in fact-finding. To say that the jury must determine whether they hold a reasonable doubt as to the guilt of the accused on each charge was correct. He did not imply that they should interrogate their own understandings of the phrase, nor should he have done so. 2. Counsel for the applicant submitted that the passage constituted an abrogation of responsibility on the part of the judge and the reference to a "rather longwinded apology" should not have been said. To tell the jury that they are the arbiters of the facts is not an abrogation of responsibility on the part of the judge; further, why the accused was in any way prejudiced by the judge describing his inability to answer a common question asked by juries as an "apology" is obscure. The judge directed them to be satisfied beyond reasonable doubt on some thirty occasions in the course of the summing up, so that the phrase appeared on average once every two pages of the transcript of the summing up. They can have been in no doubt as to the standard to be applied: indeed, their request for assistance confirmed that conclusion. No doubt the judge could have pointed out that a fanciful doubt would not warrant acquittal and that the standard required was higher than the balance of probabilities. There was, however, no obligation to adopt either course, each of which might have invited the jury to embark on a comparative exercise of states of satisfaction which may not always be helpful, depending on the circumstances and the context. 3. Ground 2 must be rejected. Conclusion 1. To the extent that the grounds did not involve a question of law alone, the applicant should have leave to appeal against his convictions. However, the appeal must be dismissed. 2. PRICE J: I agree with Basten JA. 3. GARLING J: I agree with the orders proposed by Basten JA. I also agree with his reasons for those orders. ********** Endnotes 1. Tcpt, 11/09/19, p 45(33). 2. Summing up, 24/09/19, p 26. 3. Tcpt, pp 383-384. 4. Tcpt, p 384(19)-(24). 5. Tcpt, p 555(32)-(39). 6. Tcpt, p 570(5). 7. Tcpt, p 571(10). 8. Tcpt, p 604. 9. Tcpt, p 605(33). 10. Tcpt, p 610(12). 11. Tcpt, p 615(10). 12. Tcpt, p 642(5)-(35). 13. (1985) 157 CLR 671 at 676; [1985] HCA 35. 14. Chin at 684-685. 15. R Weinstein, J Anderson, J Marychurch and J Roy, Uniform Evidence in Australia (3rd ed, Lexis Nexus Butterworths, 2020) at par 110-14. (The passage is unchanged from earlier editions by N Williams et al.) 16. The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 at [23]-[28]. 17. Applicant's written submissions at par 72. 18. Summing up, 26/09/19, pp 70-71. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2021