New South Wales Court of Criminal Appeal CITATION: Regina v R.N [2005] NSWCCA 413 HEARING DATE(S): 2 December 2005 JUDGMENT DATE: 2 December 2005 JUDGMENT OF: Grove J at 19; Sully J at 1; Howie J at 20 DECISION: Crown appeal allowed; Challenged ruling set aside Criminal Appeal Act (NSW) 1912 LEGISLATION CITED: Evidence Act (NSW) 1995 Hoch v The Queen (1988) 165 CLR 292 R v Colby (1999) NSWCCA 261 BRS v The Queen (1998) 191 CLR 275 CASES CITED: R v Harker [2004] NSWCCA 427 Pfennig v The Queen (1994-1995) 182 CLR 461 at 528, 529 R v Milat, unreported: 5 September 1996 Regina PARTIES: R.N FILE NUMBER(S): CCA 2005/2048 D. Arnott SC - Crown COUNSEL: J. Stratton SC - Respondent S. Kavanah - Crown SOLICITORS: S. O'Connor - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/31/0112 LOWER COURT JUDICIAL OFFICER: Coolahan DCJ - 6 - IN THE COURT OF CRIMINAL APPEAL 2005/2048 GROVE J SULLY J HOWIE J Friday 2 December 2005 REGINA v R.N JUDGMENT 1 SULLY J: The Court orders in this matter that in any report of this judgment and in any report of the proceedings in this Court, the respondent, the complainant and the complainant's mother, are to be referred to only by the initials used ,respectively, to describe them in this judgment. 2 Before the Court is a Crown appeal, brought pursuant to section 5F(3)A of the Criminal Appeal Act 1912. The appeal is brought against a ruling upon an evidentiary issue and a trial current in the District Court and over which Judge Coolahan is presiding. 3 Mr. N, the respondent to the appeal, is to stand trial upon an indictment containing twelve counts. Each count charges against the respondent a serious sexual offence against a complainant, who is the respondent's stepdaughter. The Crown proposes to lead, as part of its case at trial, evidence from the complainant's mother. The Crown puts that evidence forward as coincidence evidence in the sense defined by s 98 of the Evidence Act 1995. 4 Before a jury had been empanelled, Judge Coolahan was told about this proposed Crown evidence. Counsel for the respondent informed his Honour that objection was taken to the admission of the evidence, the stated basis of the objecting being a real prospect of concoction between the complainant and her mother. A hearing on the voir dire was there upon conducted. Comparatively brief evidence was given by the complainant and by her mother and various statements were tendered. At the conclusion of the evidence and before the commencement of submissions, the Crown Prosecutor said to Judge Coolahan :- "Your Honour in the hope of saving some time, as I understand it from speaking to my learned friend, the main thrust of the objection is not so much that the matter or the evidence doesn't fulfil the criteria under 98(2), and 98(1)(b), more in context of the 101(2) situation your Honour. If I'm wrong on that, I don't think there's a dispute that it has within 98(1)(b) significant probative value and that they are relatively and substantially similar in the circumstances in which they occurred. I think the argument revolves around the evidence substantially to what outweighs any prejudicial effect it may have. If I'm wrong on that then." 5 Counsel for the accused once accepted the correctness of these observations of the Crown Prosecutor. In due course, the submissions of both counsel concluded and his Honour reserved his decision. The reserved decision was handed down on 10 August last. His Honour excluded the particular evidence of the complainant's mother. 6 The relevant facts are stated succinctly and as follows in the reserved judgment and I have taken them from the relevant pages of the judgment. Once again, I will not take time to read them out. 7 The core of his Honour's process of reasoning is exposed in the following passages of the reserved judgment: "However in my view the evidence here discloses a reasonable possibility of concoction. Firstly, there is the relationship between the mother and the complainant which was obviously strong enough so as to allow the complainant to make the disclosures to her mother on 10 May 2003. Secondly, there is the two day gap between when that disclosure was made and when the complainant made her first statement to the police. Thirdly, there is the differing evidence between the complainant and her mother as to whether the issue of the brown bottle was discussed prior to the complainant making her first statement. It is clear from the first statement that that issue must have been discussed, whereas Ms D.N denied that it had been raised at all or that any mention had been made of the brown bottle until after the complainant's second statement. These matters individually and together in my view give rise to a reasonable possibility of the concoction of such evidence. That being the case, the evidence should be excluded." 8 These passages are preceded by a brief discussion of the decisions of the High Court of Australia in Hoch v The Queen (1988) 165 CLR 292; of this Court, (Mason P, Grove and Dunford JJ) in Colby (1999) NSWCCA 261; and of the High Court of Australia in BRS v The Queen (1998) 191 CLR 275. 9 In R v Ellis (2003) 58 NSWLR 700, the Chief Justice, speaking of s 101(2), said that it calls for a balancing exercise, which can only be conducted on the facts of each case. It seems to me to be appropriate, when considering whether in a particular case that balancing exercise has been soundly carried out, to adopt the approach taken by this Court, (Santow JA, Bell and Howie JJ), in R v Harker [2004] NSWCCA 427 and, in particular, the approach taken by Howie J in para 58 of his Honour's judgment: "Finally, his Honour in his judgment on the admissibility of the evidence failed, in my opinion, to give adequate reasons for his determination that the probative value of the evidence was outweighed by its prejudicial effect. It is, with respect, not enough to repeat, as some kind of mantra, words taken from s 101(2) without explaining how it is that the evidence is so prejudicial that it ought to be rejected in the exercise of discretion once it is accepted that the evidence is admissible under a 97(1). I am quite unable from an examination of the whole of his Honour's reasons to find that any proper evaluation of the evidence based upon the weighing of its probative value as against it prejudicial effect took place." 10 It seems to me that the correct starting point for Judge Coolahan, was his Honour's finding, with which I respectively agree, that the challenged evidence was capable of being characterised beyond doubt as being coincidence evidence in the s 98 sense. That finding necessarily entails subsidiary findings that the challenged evidence had significant probative value; that the events described by the challenged evidence were substantially and relevantly similar to the events described by the complainant; and that the respective circumstances, in which the two courses of events had occurred, were substantially similar. 11 What his Honour had then to do was to define what prejudicial effect, if any, the admission of the challenged evidence might have upon the respondent. Having thus identified some perceived prejudice, his Honour had to carry out the exercise of balancing the high probative value which his Honour saw, correctly as I respectfully think, in the challenged evidence, against that perceived prejudice, so as to reach a considered and reasoned answer to the question whether the former factor outweighed substantially the latter factor. The essence of that task is described as follows by McHugh J in Pfennig v The Queen (1994-1995) 182 CLR 461 at 528, 529: "If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial." 12 This approach was followed by Hunt CJ at CL in R v Milat, unreported: 5 September 1996. 13 I accept that it would be quite wrong to suggest that Judge Coolahanshould have written out in his Honour's judgment a checklist of the steps which s 101 required to be followed and then, so to speak, have ticked off each one, step by step, in a fashion more apt to McHugh J's "mathematical calculation", than to a value judgment. It must be, however, that any s 101 ruling must make apparent that the Judge has, in fact, looked in a precise way at what the section actually says and requires; and has then considered in a precise way, which has been given adequately transparent expression, how the Judge has assessed the relevant evidence given on the voir dire, and how he has then balanced out the competing statutory considerations. It is fair to acknowledge that his Honour received very limited assistance from both counsel who appeared before him and that such assistance did not at all help his Honour by focusing upon s 101(2) in the way that I have suggested. 14 In my respectful opinion, the judgment, now under appeal, does none of those things. In the present case, if one asks what actually persuaded Judge Coolahan that there was a risk of concoction so real as to justify the exclusion of evidence which was agreed on all sides to be, if accepted, clearly probative, then the only exposed reasoning relies upon three stated factors "individually and together". No one of those factors engages, in any way, whether there was anything about the use of the bottle and the lubricant that was either unlawful or otherwise reprehensible, thereby producing a risk of prejudice to the accused such as to justify excluding the evidence. It is to be kept in mind, in that connection, that even in such a case, the exclusion of the evidence is not the only just way of dealing with any perceived prejudice: adequate direction by the Judge to the jury is an example of a possibly appropriate alternative in a particular case. 15 The first of the factors relied upon by Judge Coolahan is the close mother/daughter relationship of the complainant and her mother. That, of itself, could not give rise to a rational inference of the existence of a reasonable possibility of concoction between mother and daughter. 16 The second factor is that two days elapsed between the first complaint of daughter to mother and the holding of the first interview of the complainant by the investigating police. That too, could not give rise of itself to the suggested inference. 17 The third element is the undoubted discrepancy between the voir dire evidence of the complainant and of her mother as to whether the issue of the brown bottle was first discussed between them prior to the making of the complainant's first official statement. The evidence itself is sparse. It seems to me to be as consistent, when viewed with practical common sense, with one or other of the witnesses having simply been mistaken, as it is consistent with a reasonable possibility of concoction. I observe that neither witness had put to her that in fact there had been any concoction; or indeed, any other improper pressure or influence going to the reliability of the challenged evidence. 18 His Honour seems to me, and in all proper respect to him, not to have done what this Court said in Harker, that he needed to do. I would allow the Crown appeal and set aside the challenged ruling. 19 GROVE J: I agree with Sully J. 20 HOWIE: I also agree. 21 GROVE J: The order of the Court, therefore, will be as proposed by Sully J. ********** 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.