Reported Decision: 190 A Crim R 8 New South Wales Court of Criminal Appeal CITATION: R v Smith [2008] NSWCCA 247 HEARING DATE(S): 14 October, 2008 JUDGMENT DATE: 30 October 2008 JUDGMENT OF: McClellan CJ at CL at 1; Blanch J at 2; Hislop J at 26 DECISION: Appeal allowed. Ruling made by trial judge vacated. CATCHWORDS: Crown appeal - Tendency evidence Criminal Appeal Act, 1912, s5F(3A) LEGISLATION CITED: Crimes Act 1900, s61M(1), s61M(2), s61J, s66A Evidence Act 1995, s97, s98, s101(2) CATEGORY: Principal judgment R v Fletcher (2005) 156 A Crim R 308 R v Harker [2004] NSWCCA 427 CASES CITED : R v Milton [2004] NSWCCA 195 R v GAC [2007] NSWCCA 315 R v Shamouil (2006) 66 NSWLR 228 R v SJRC [2007] NSWCCA 142 PARTIES: Regina (Appellant) James Duncan Smith (Respondent) FILE NUMBER(S): CCA 2007/00011356 COUNSEL: D C Frearson SC (Appellant) J S Stratton SC (Respondent) SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions (Appellant) Adams & Partners (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/00011356 LOWER COURT JUDICIAL OFFICER: Armitage DCJ LOWER COURT DATE OF DECISION: 30 July, 2008 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v James Smith IN THE COURT OF CRIMINAL APPEAL CCA 2007/00011356 McCLELLAN CJ at CL BLANCH J HISLOP J 30 October, 2008 Regina v James Duncan SMITH 1 McCLELLAN CJ at CL: I agree with Blanch J. 2 BLANCH J: This is an appeal brought by the Crown pursuant to section 5F(3A) of the Criminal Appeal Act, 1912, against a ruling by the trial judge that evidence of tendency and coincidence sought to be tendered was not admissible under section 97 and section 98 of the Evidence Act, 1995. In order to succeed the Crown must demonstrate the ruling "eliminates or substantially weakens" the prosecution's case – see section 5F(3A) Criminal Appeal Act, 1912. 3 The Crown case asserts that TM, the complainant, was touched in a sexual way by the respondent over a number of years. The first occasion was when she was seven and attending Oatlands Public School and visiting her father on the weekend at his house in Faulconbridge. She stayed overnight with her sister and father at the respondent's home. The complainant was sleeping in the lounge room of the respondent's home with her sister and three children of the respondent. The complainant was sleeping on the lounge and during the night the respondent approached the complainant, woke her up, took off her underwear and pyjama pants and started stroking her vagina. These allegations related to count 1 in the indictment alleging aggravated indecent assault under section 61M(2) of the Crimes Act, 1900. After touching her vagina the respondent began to touch the complainant's bottom and put his finger inside her anus. This evidence supports count 2 alleging sexual intercourse with a girl under the age of ten under section 66A of the Crimes Act. This hurt the complainant and she told the respondent to stop. He said "No, it's okay" and also said "You can't tell anyone 'cause we'll get into trouble". He then started playing with the complainant's breasts. When he ceased doing this, he sat at a dining room table and fell asleep. 4 The second occasion was after the complainant had moved to Finley and when she was not yet ten, she was again visiting the respondent's house and sleeping on the lounge in the lounge room and her sister and the respondent's three children were also in the lounge room and had been watching a movie. The complainant fell asleep and was woken up when the respondent took her pants off. The respondent undid the top of his pants and pulled down his underwear, exposing his penis. He then grabbed the complainant's wrist and put her hand on his penis moving her arm back and forth before letting go. This evidence supports count 3 in the indictment alleging aggravated indecent assault under section 61M(2) of the Crimes Act. He then grabbed the complainant's neck and shoulder and pulled her towards his penis. This evidence supports count 4 alleging aggravated indecent assault under section 61M(2). The complainant pulled away and said "No" and the respondent then began playing with her vagina. He then put his fingers inside her vagina moving his fingers. This evidence supports count 5 alleging sexual intercourse with a child under the age of ten years under section 66A. He then squeezed her breasts and this evidence supports count 6 of aggravated indecent assault under section 61M(2). He then grabbed and squeezed one of the cheeks of the complainant's bottom and the complainant went back to sleep. 5 The third occasion where an offence is alleged by the Crown is on 1 January, 2005. The complainant and her father and sister again visited the respondent. Again that night all the children slept in the lounge room and the respondent was left in charge of the children. During the night he woke the complainant and undressed her. He then commenced stroking her vagina. He put one of his fingers inside her vagina and moved it around. She asked him to stop because it was hurting but he continued the activity. This evidence supports count 7 of aggravated sexual assault under section 61J. He then started touching the complainant's breasts. This evidence supports count 8 of aggravated indecent assault under section 61M(1). He then went to sleep at the dining room table. At some time the complainant woke up and saw that her father was still not home and became upset and she woke the respondent. He told her to sit on his lap and he put his hand down the complainant's pants and touched the cheek of her bottom. This evidence supports count 9 of aggravated indecent assault under section 61M(1). 6 The tendency evidence which is sought to be called refers to evidence arising from the respondent being charged on 30 March, 2004 in relation to sexual offences against two children, NM and TG. He was convicted and sentenced in respect of an offence of aggravated indecent assault against TG. TG was a school friend of the respondent's daughter and was born on 26 June, 1992. In October, 2003 TG slept two nights at the respondent's home. She slept on a mattress in the lounge room and she fell asleep after watching a movie. During the night she was awoken by the respondent when he pulled down her pants. He then started touching her vagina with his fingers. His fingers felt around the sides of her vagina and he touched her on the legs. She said his fingers were "just feeling and just moving around". The following morning he told TG not to tell anyone about what had happened. 7 The similarities asserted by the Crown are: 1. The similar ages of the complainant and TG. The complainant was born on 10 August, 1993 so that at the time of the last incident on 1 January, 2005 she was aged 11 which is the same age as TG. 2. Both girls were friends of the respondent's daughter. 3. Both complainants gave evidence of events occurring at a sleepover at the respondent's home. 4. Both complaints related to events in the lounge room of the home while other children were asleep. 5. Both complaints involved indecent fondling of the complainant. 6. Both complaints significantly involved allegations the respondent woke the complainant up with his activity. 7. Both complainants said the respondent told them not to tell anyone what had occurred. 8. In each case after the activity stopped the respondent went to a nearby table in the kitchen and sat at the table. 8 The trial judge, after examining the evidence, noted that there were great similarities between the allegations made by the complainant and those made by TG. His Honour then proceeded to apply the law as set out by Justice Simpson in R v Fletcher (2005) 156 A Crim R 308. He noted: "What is not identical between the two sets of allegations is that the present complainant alleges digital intercourse with the accused on more than one occasion, whereas TG does not allege such intercourse at all." 9 He went on to say: "The fact is, however, that TG does not at any point in her "tendency" evidence, as the Crown would have it, allege touching of other areas of her body apart from her vagina. With some reluctance I have concluded that in view of this fact, her evidence does not have significant probative value in relation to any count in the indictment with the exception of count 1." 10 His Honour concluded that the evidence should not be admitted as tendency evidence under section 97 of the Evidence Act and nor should it be admitted under section 98 of the Evidence Act "for the same reasons as set out in relation to section 97 the evidence of TG is not sufficiently similar to the evidence of the complainant TM." He accepted that the surrounding circumstances were more or less identical but the actual allegations of indecency were not similar. 11 Section 97 of the Evidence Act is as follows: "(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular statement of mind, if: (a) the person adducing the evidence has not given reasonable notice in writing to each other part of the party's intention to adduce the evidence; or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under s 100; or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. Note: The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (ss 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions." 12 Section 98 of the Evidence Act is as follows: "(1) Evidence that two or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) the person adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce that evidence: or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the parties seeking to adduce the evidence, have significant probative value. (2) For the purposes of subs (1), two or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar: and (b) the circumstances in which they occurred are substantially similar." 13 Section 101(2) of the Evidence Act states: "(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." 14 The trial judge's decision was based on the fact that the nature of the offences which were committed was generally speaking different. In R v Fletcher (supra) Simpson J at page 324, paragraph 67 said: "In my opinion, the present appellant's argument focused too narrowly upon a tendency to have sexual intercourse in a particular fashion. The DPP's explanation, provided to the appellant's legal advisors, shows that the "tendency" which it sought to establish was wider, and more detailed. The DPP sought to establish a pattern of behaviour, or even a modus operandi, in the appellant's behaviour. This included the use of his position as parish priest in meeting Catholic families and involving himself in their lives, developing a special relationship with the families, the children of the families, and in particular with a child the focus of his attention; and the introduction of the child to sexually explicit material and, eventually, inappropriate sexual behaviour." 15 This statement agrees with the expression of opinion by Justice Howie in R v Harker [2004] NSWCCA 427 at paragraph 51: "51 The Crown argues that the probative value of the evidence of [the witness] transcends the mere fact that the respondent was having a sexual relationship with another young man at about the time he was in a sexual relationship with the complainant. The Crown relies upon what it says are a number of similarities between the accounts given by the complainant and [the witness] in the way the respondent acted towards them and that this similarity in conduct shows that the respondent had the tendency to act in a particular way to young boys at the time the complainant alleges that he was sexually assaulted by him. It is unnecessary to set out in detail the allegations made by [the witness] that are similar to those made by the complainant, but in my view, when considered as a whole, there is sufficient similarity between the accounts of [the witness] and the complainant for the evidence of [the witness] to satisfy the test of admissibility under s97(2)(b)." 16 Again in R v Milton [2004] NSWCCA 195 Hidden J said at paragraph 31: "31 The detail of the sexual activity alleged by each of the complainants and the circumstances surrounding it is not to the point. True it is that evidence that the appellant had sexual contact with two boys in their early teens would not, of itself, be sufficient. However, that is not the only common thread in their evidence. What emerges from the testimony of each of them is an attempt by the appellant to foster a relationship with them conducive to sexual contact despite their youth and immaturity. This arises not just from his employing each of them. It is to be found in his encouraging them to drink and use drugs in a manner entirely inappropriate for boys of their age, and in his efforts, by word and deed, to loosen their natural sexual inhibitions. It is also to be noted that, on the account of both complainants, he was prepared to impose his will upon them in the teeth of their resistance." 17 The trial judge did note the similarity of the surrounding circumstances but in addition to that, in my view, there were similarities in relation to the way the offences were alleged to have occurred. The significant feature of the complaint of TG was the fondling and stroking of her vagina and legs. The evidence relating to the first occasion where the respondent is charged with an offence against TM involved him stroking her vagina and touching her bottom before he inserted his finger in her anus. The evidence relating to the second occasion was that after he had put her hand on his penis and tried to pull her towards his penis, he began touching her vagina before he inserted his finger in her vagina. On the third occasion he was stroking her vagina before he inserted his finger in her vagina. In my view the virtually identical surrounding circumstances of all of these allegations and the similarities involved in carrying out the various activities involved in the allegations does lead to the conclusion that the evidence sought to be tendered by the Crown is admissible as tendency evidence. That conclusion is not frustrated simply by the fact that on some occasions the respondent went further than simply touching and fondling. 18 The trial judge concluded: "I am of the view that the evidence of TG, advanced by the Crown as tendency evidence, does not have, within s97(1)(b), "significant probative value" in proving the existence of a fact or facts in this trial. That is because the Crown advances this tendency evidence in relation to all the counts in the indictment, some of which, as I have said, involve much more serious offences, that is to say sexual intercourse with a child under the age of 10 years or sexual intercourse without consent with a child under the age of 16 years." 19 It is conceded by senior counsel for the respondent that the finding there was no significant probative value is, in fact, an error. For the reasons given above, I agree with that concession. The evidence goes to establish the respondent's sexual interest in young girls, his preparedness to carry out sexual acts with young girls where there were other people in the room where he performed his actions and where he ran a significant danger of being discovered and the nature of his actions in fondling both girls on the vagina were also the same in each instance. 20 The trial judge went on to consider section 101(2) of the Evidence Act although as he acknowledged, it was not necessary to do so on his findings. Having assessed the evidence already as having no significant probative value, the exercising of a discretion under section 101 would have been difficult. His Honour attempted to do so by postulating that if "… in a finely balanced exercise I concluded that the evidence of TG was admissible under section 97 or section 98, I would have had to balance its probative value against its prejudicial value against section 101(2)." It was on this basis his Honour concluded that a discretion would have been exercised to exclude the evidence if he had allowed the evidence in under section 97 or section 98. 21 As I have indicated above, the evidence was clearly of significant probative value and not simply the result of "a finely balanced exercise". Undoubtedly the evidence would be prejudicial as any evidence tending to prove guilt is. The question is whether the degree of unfairness is such that it is, or is not, substantially outweighed by the probative value of the evidence. On the basis of the material produced to this Court in the form of a summary of the Crown case, I would admit the evidence but that is a matter which can be left to the trial judge to determine in light of the evidence as it emerges in the trial. 22 In order to succeed on the appeal, the Crown must demonstrate the ruling "eliminates or substantially weakens" the prosecution case. The tests for this were set out in the judgment of this Court in R v GAC [2007] NSWCCA 315. There the Court endorsed the proposition that the right of appeal under section 5F(3A) is one to be exercised with restraint (see per Giles JA at paragraph 47). The Court also endorsed the test for "substantially weakens" put forward by the Chief Justice in R v Shamouil (2006) 66 NSWLR 228 where at paragraph 40 he said: "This Court should determine whether or not a ruling on the admissibility of evidence "substantially weakens" the Crown case by asking whether or not that be the effect, on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury." 23 In the case of R v SJRC [2007] NSWCCA 142 the Crown case consisted almost entirely of the evidence of the complainant and the evidence in dispute as to admissibility related to two text messages from the accused which might be interpreted as an admission that sexual acts had occurred with the complainant. It was held the exclusion of that evidence would "substantially weaken" the prosecution case – see per James J at paragraphs [29] to [31]. 24 Similarly in this case the Crown case consists of the evidence of the complainant supported by the tendency evidence if it is accepted by the jury. To eliminate the tendency evidence in this case would "substantially weaken" the prosecution case because the only evidence remaining would be that of the complainant and her credibility will no doubt be criticised on the basis that she could easily have raised the alarm but did not. 25 Accordingly, I would allow the appeal and vacate the ruling made by the trial judge. 26 HISLOP J: I agree with Blanch 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. 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