New South Wales District Court CITATION: R v RM [2009] NSWDC 253 HEARING DATE(S): 23 - 26 March 2009 JUDGMENT DATE: 26 March 2009 JURISDICTION: Crime JUDGMENT OF: Murrell SC DCJ CATCHWORDS: CRIMINAL LAW - Application for separate trials - tendency evidence relating to types of conduct - probative value - possibility of concoction Crimes Act 1900 LEGISLATION CITED: Criminal Procedure Act 1986 s 29 Evidence Act 1995 s 55 and 97 AW v R [2009] NSWCCA 1 De Jesus (1986) 22 A Crim R 375 Hoch v The Queen (1988) 165 CLR 292 R v Colby [1999] NSWCCA 261 R v Ellis (2003) 58 NSWLR 700 CASES CITED: R v Fletcher [2005] NSWCCA 338 R v Harker [2004] NSWCCA 427 R v Lockyer (1996) 89 A Crim R 457 R v Milton [2004] NSWCCA 195 R v OGD No2 [2000] NSWCCA 404 R v RN [2005] NSWCCA 413 PARTIES: Regina RM FILE NUMBER(S): 2007/00006176 COUNSEL: N Williams of Counsel for the Crown S Corish of Counsel for the Accused SOLICITORS: NSW Director of Public Prosecutions Penelope Purcell Solicitors The Alleged Offences 1 The accused stands indicted on 11 counts involving five complainants (D, G, M, J & B) and three types of conduct: (1) Encouraging boys to run naked around a particular tree in the accused's backyard in return for money ("the tree run game "). (2) While watching pornographic video material, masturbating in front of a group of boys and encouraging the boys to masturbate (" the group masturbation game"). (3) Watching naked boys take a cold shower. The boy who endured the cold shower for the longest period would receive payment ("the cold shower game "). 2 The alleged offences were perpetrated in about 2003/2004 at the accused's South Coast residence. They involved a particular group of friends. Members of the group attended the accused's home, where he supplied them with alcohol, cannabis and pornography and paid them to participate in the "games". The Contentions about Tendency Evidence and Separation of Trials 3 Initially, the accused sought a stay of the proceedings on the basis that the Crown had not adequately particularised the charges. 4 Following clarification of the evidence on a voir dire inter alia to determine whether tendency evidence should be admitted, the Crown particularised the charges by alleging that counts one and two (tree run and group masturbation involving M.), counts three and four (tree run and group masturbation involving B) and counts 10 and 11 (tree run and group masturbation involving D) occurred on the same occasion. 5 The Crown contended that, as counts 1 to 4, 10 and 11, related to the one occasion and each complainant is a witness in the trials involving the other two complainants, the six counts should be heard together. The accused accepted that submission. 6 The Crown contended that, as to the remaining five counts, evidence of each count should be admitted as tendency evidence in relation to each of the other 10 counts. In addition, the Crown sought to adduce tendency evidence from C and DB. 7 The accused accepted that, in so far as evidence concerning a count was to be admitted as tendency evidence on another count, the counts would generally be tried together. However, the accused submitted that evidence concerning one type of conduct was not tendency evidence in relation to the other two types of conduct. Further, any tendency evidence should be rejected because it lacked significant probative value as there was a reasonable possibility of concoction. The accused contended that the Court would not be satisfied that the probative value of the tendency evidence substantially outweighed any prejudicial effect on the accused. Consequently, there should be a total of four trials. In addition to the trial for counts one to 4, 10 and 11, there should be separate trials for count five (group masturbation involving J), counts six, seven and eight (tree run and two cold showers involving G) and count nine (group masturbation involving D). Admissibility of Tendency Evidence 8 Evidence that a person tends to act in a particular way is only admissible if: (1) Reasonable written notice has been given in accordance with section 97(1)(a) of the Evidence Act 1995, the court has dispensed with written notice pursuant to s100, or the evidence is called to explain or contradict tendency evidence adduced by another party: s 97(2)(b). (2) The evidence is relevant in that it is capable of rationally affecting a fact in issue: s 55. (3) The court determines that the evidence will have significant probative value: s 97 (1)(b). (4) As to evidence tendered by the prosecution, the court is satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused: s 101(2). Notice and Identification of the Tendency 9 In relation to the counts involving a " tree run" or "group masturbation", in a notice under s 97, the Crown nominated the following tendency: "2. The tendency sought to be proved is (the tendency of the accused) to act in a particular way, namely to supply alcohol and/or marijuana to teenage boys and to engage in and/or incite teenage boys to run around a tree whilst naked; and to engage in and/or incite teenage boys to participate in a group masturbation activity." 10 Although the "cold shower" evidence was not the subject of a tendency notice, the Crown sought to rely upon each of the "cold shower" counts (counts seven and eight, involving G) as tendency evidence in relation to each of the other counts and vice versa. In addition, the Crown sought to adduce "cold shower" tendency evidence from C and J. Although the Crown had not given written notice of its intention to adduce "cold shower" tendency evidence, the accused had been advised of the Crown's intention and raised no objection based on lack of notice. Pursuant to s 100, I dispense with the requirement of written notice. 11 The Crown sought to rely on evidence about a particular "game" to establish a tendency to engage in all three "games" or, alternatively, to establish a tendency to engage in the particular "game". Probative Value 12 When assessing the probative value of tendency evidence, the task of the trial judge involves a two-step process: R v Fletcher [2005] NSWCCA 338 at [33]. First, the judge must assess whether the evidence has the capacity to rationally affect the probability of the existence of a fact in issue. Second, the judge must assess the probative value that the jury might ascribe to the evidence and determine whether it has significant probative value. 13 In this trial, as to each count the ultimate fact in issue is whether the accused actually conducted himself in the manner alleged by each complainant by engaging in the relevant "game". 14 The conduct comprising the "tree run game" was very distinctive and probably unique. 15 The circumstances of each of the "games" were distinctive in that each involved members of a particular group of boys who were of a similar age attending the accused's residence, being supplied with alcohol and/or illicit drugs, (in the case of group masturbation) viewing pornography in the lounge room, engaging in group conduct and generally speaking, receiving payment. As to the accused's conduct, in each of the "games" he observed boys in a sexual context, but did not touch them. 16 In relation to each "game", the similarity of conduct and circumstances is such that the playing of the "game" on one occasion undoubtedly has the capacity to rationally affect an assessment of whether the accused engaged in that "game" on another occasion. Further, in relation to all "games", the similarity of circumstance and the general similarity of conduct is such that I am satisfied that the evidence in relation to each "game" is probative in that it has the capacity to rationally affect an assessment of whether the accused engaged in each other "game". Whether the Probative Value is Significant 17 Evidence has "significant" probative value if it is not merely relevant but also "meaningful", " important" or "of consequence" in establishing an issue in contest: R v Lockyer (1996) 89 A Crim R 457, AW v R [2009] NSWCCA 1. In this case, the evidence has "significant" probative value if it is important to establishing whether the accused engaged in the "game" the subject of a particular charge in the manner alleged by the relevant complainant. 18 The tendency evidence refers to events that were relatively contemporaneous with the events the subject of the indictment in that all alleged events occurred in about 2003 /2004. 19 The events the subject of the tendency evidence occurred in very similar circumstances: see [15] above. 20 As to each alleged "tree run game", the conduct was very similar and the nature of the "game" was probably unique. As to the "group masturbation game", the conduct on each alleged occasion was very similar and the nature of the "game" was distinctive. The same observation applies to the "cold shower game ". As between the "games", the conduct was dissimilar except that each involved the accused observing more than one boy in a sexual context, but not touching any boy. 21 Most of the tendency evidence has a reasonable but not high level of particularity. 22 All the tendency evidence is disputed. Qualitative aspects of tendency evidence are to be considered when determining whether the evidence has significant probative value: AW v R at [47]. 23 Although the High Court decision in Hoch v The Queen (1988) 165 CLR 292 predates the Evidence Act 1995, the procedural approach adopted in Hoch should be applied to trials conducted in accordance with the Act: R v Colby [1999] NSWCCA 261, R v OGD No2 [2000] NSWCCA 404 at [77] and [129]. In Hoch at page 297, Mason C.J., Wilson J. and Gaudron J. stated: " Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience … if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of commonsense and experience, the evidence will lack the degree of probative value necessary to render it admissible. Of course, there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction." Brennan and Dawson JJ held that similar fact evidence should be excluded unless the court was satisfied that there was "no real chance" that it was the product of concoction by the witnesses: page 304. 24 In Colby at [109] – [111], the Court referred to Robertson (1997) 91 A Crim R 388, in which Ambrose J. reviewed the post-Hoch English decisions and concluded that the "possibility of concoction" test required by Hoch referred to "a reasonable possibility as distinct from a speculative or conjectural one". That approach was endorsed in R v OGD No2 at [77] and [129]. 25 The approach is consistent with that of the minority in Hoch. At 304, Brennanand Dawson JJ noted: "That is not to say that a trial judge should lightly conclude that there is a "real chance" of conspiracy among complainants in sexual cases, whether children or adults. Contact or antecedent friendship between complainants may be quite insufficient to found such a conclusion. But the circumstances of their contact or friendship may warrant an enquiry whether there was a real chance that they had agreed to concoct their allegations. When such circumstances appear, the judge must enquire." 26 I accept the accused's submission that, when determining whether there is a reasonable possibility of concoction between tendency evidence witnesses, a court is not constrained to consider only relationship, opportunity and motive. For example, voir dire evidence may suggest an absence of motive but peculiar similarities between the evidence of witnesses may suggest that they have "put their heads together". 27 In this case, the tendency witnesses gave evidence on the voir dire. With the exception of DB, who had only a very passing acquaintance with all but one of the other witnesses, the witnesses were part of the same group of friends. They had attended the same high school and most were in the same school year. Members of the group attended the accused's residence in the company of other members of the group, although some members attended much more frequently than others. Since the group left school, there has been some contact between some members of the group, but most have gone their own way and had little contact with other members. I accept that the relationship between the witnesses (with the possible exception of DB) is such that they may have communicated in relation to the accused. I accept that there was an opportunity to do so. Indeed, some witnesses agreed that they had discussed the matter with another witness, although only in general terms. 28 I accept the accused's submission that there is no onus upon him to reveal a motive. However it is relevant to consider whether any possible motive is disclosed. In this case no motive to lie has been revealed. The community no longer regards allegations such as those here in question to be inherently unreliable. Indeed, the contrary is true. Nowadays, common sense and experience suggest that young men (generally, these witnesses are about 19 years old) are extremely unlikely to fabricate a scenario whereby, when they were adolescent boys, they and their friends accepted drugs, alcohol and money to engage in unsavoury sexual "games" in which they were observed by an older man. 29 In my view, the possibility of concoction is purely speculative or conjectural. There is no evidence of motive and there is no other evidence suggesting a reasonable possibility of concoction. The accused conceded that, given the age of the witnesses in 2003/2004 and the nature of their evidence, no issue of unconscious infection/contamination arises. Prejudice 30 Pursuant to section 101 (2), the Court is required to evaluate the evidence in the particular case, weighing its probative value against its prejudicial effect: R v Ellis (2003) 58 NSWLR 700, R v Harker [2004] NSWCCA 427, particularly per Howie J at [58], R v RN [2005] NSWCCA 413 at [9]. 31 In this case, the tendency evidence regarding each "game" is of high probative value in relation to the counts concerning that "game". The evidence concerns reasonably contemporaneous events involving distinctive conduct and distinctive circumstances. The evidence has a reasonable degree of particularity. There is no "reasonable possibility" of concoction. Undoubtedly, the accused will be exposed to possible prejudice in the sense that, where witnesses refer to a number of occasions involving distinctive conduct, the jury may be inclined to reason that, if the accused committed the conduct on the occasion the subject of a particular charge, then he committed it on another occasion. However, that prejudice can be addressed by an appropriate direction. I am well satisfied that the probative value of the evidence substantially outweighs any prejudicial effect that it may have on the accused. 32 As to the probative value that evidence of one "game" has in relation to a charge alleging another "game", the s 101 balancing exercise is difficult. Although the circumstances of each "game" are very similar, the conduct is not. With some hesitation, I have concluded that the s 101(2) test is not satisfied. Evidence of one "game" will not be admitted as tendency evidence in relation to a charge alleging another "game". Separation of the Trials 33 Pursuant to s 29 of the Criminal Procedure Act 1986, all charges may be heard together. Generally, where a complainant alleges that an accused committed a series of offences against the complainant, the charges will be heard together. Further, where evidence concerning one charge is to be admitted as tendency evidence on another charge, the charges will be heard together: R v Milton [2004] NSWCCA 195. 34 The question is whether, in this case, the application of that practice would result in unfairness to the accused. Unfairness may arise because, where evidence of one charge is not admissible towards proof of guilt on another charge, the jury may disregard a direction that they may not reason that, because an accused has committed one offence, he or she is more likely to have committed another offence. In De Jesus (1986) 22 A Crim R 375 at 378 Gibbs CJ observed that sexual cases were peculiarly likely to arouse prejudice against which a direction to the jury was unlikely to guard. Although I do not understand the rationale for that approach and question its validity, I accept that it has been applied by superior courts in many cases. Nevertheless, I am confident that, in the present case, potential unfairness can be neutralised by an appropriate direction. 35 The application to separate the trials is refused. 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.