Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Steadman v R (No 1) [2013] NSWCCA 55 Hearing dates: 19 November 2012 Decision date: 13 March 2013 Before: Macfarlan JA at [1] Hall J at [25] Campbell J at [26] Decision: (1) Leave to raise second ground of appeal refused. (2) Appeal dismissed. Catchwords: EVIDENCE - indecent assault of person under the age of 16 - context evidence to assist in evaluation of complainant's evidence of alleged offences - previous conduct of the appellant of a sexual nature involving the complainant - requirements for use as propensity evidence not satisfied - appropriate directions to the jury Legislation Cited: Crimes Act 1900 Criminal Appeal Rules Evidence Act 1995 Cases Cited: BBH v R [2012] HCA 9; 245 CLR 499 DJV v R [2008] NSWCCA 272; 200 A Crim R 206 ES v R (No. 1) [2010] NSWCCA 197 ES v R (No. 2) [2010] NSWCCA 198 HML v R [2008] HCA 16; 235 CLR 352 KSC v R [2012] NSWCCA 179 Pfennnig v R [1995] HCA 7; 182 CLR 461 Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 R v ATM [2000] NSWCCA 475 Roach v R [2011] HCA 12; 242 CLR 610 Rodden v R [2008] NSWCCA 53; 182 A Crim R 227 Category: Principal judgment Parties: Ivan Bruce Steadman (Appellant) Regina (Respondent) Representation: Counsel: N Steel (Appellant) N Noman SC (Respondent) Solicitors: Andrew Harris & Associates (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/151505 Decision under appeal Jurisdiction: 9101 Citation: R v Ivan Bruce Steadman Date of Decision: 2011-05-06 00:00:00 Before: Sweeney DCJ File Number(s): 2009/151505 Judgment 1MACFARLAN JA: After a trial in the District Court before a judge and jury, the appellant was convicted on three counts of indecent assault of a person under the age of 16, in each case, his niece (s 61E(1) and 1(A) Crimes Act 1900). He appeals against his convictions on the grounds that the trial judge erred in admitting "context" evidence and in any event gave inadequate directions to the jury concerning that evidence. THE COMPLAINANT'S EVIDENCE CONCERNING THE THREE COUNTS 2As to the first count, the complainant gave evidence that in 1983, when she was 12 years of age, the appellant accosted her in the hallway of her home and put his tongue in her mouth, resulting in the complainant pushing him away and grabbing tufts of his hair. 3As to the second count, the complainant gave evidence that in 1986, when she was 15 years old and staying overnight with the appellant and his wife at their home, the appellant came into the bathroom whilst she was showering and put his erect penis between her legs in her vaginal area. On the same evening she woke up in her bed to find the appellant on top of her. This latter incident was the subject of count three. THE CONTEXT EVIDENCE 4By a judgment delivered prior to the trial, the trial judge decided, contrary to the contentions of the appellant, that the Crown was entitled to lead from the complainant at the trial, context evidence to the following effect: (1) At Easter 1978, when the complainant's family, who lived in Sydney, were visiting the appellant's home in Canberra, the appellant called the complainant into a bathroom whilst he was washing himself in the shower. (2) On the same visit, the appellant called the complainant into a bathroom whilst he was apparently masturbating in the shower. (3) On the same visit, the appellant called the complainant into his walk-in wardrobe whilst he was wearing only a towel around his waist. He then threw her on the bed, wrestling her and rubbing his face over her face and chest. At the sound of the complainant's aunt and mother approaching, the appellant jumped off her and opened the closed curtains. He told his wife that he was showing the complainant the view from the bed. The complainant told her mother that the appellant had hurt her but her mother did not appear to believe her and told her that she should not be in the bedroom and that she should stay away from the appellant. (4) When the complainant's family was staying at the appellant's home in June 1979, the appellant took the complainant and her brother to a neighbour's home where they all got into a spa with the neighbour's two daughters. In the spa, the appellant grabbed the complainant around the waist and pulled her onto his lap. She thought she felt his penis to be erect. (5) Later that day, the appellant burst into a room where the complainant and the neighbour's daughter were changing. He had a camera around his neck and a camera flash went off. 5The trial judge's reasons for admitting this evidence were as follows: "Although the acts the subject of the counts on the indictment, could conceivably occur in isolation, the jury may think it strange and unrealistic that out of the blue the accused put this tongue into his niece's mouth, that being the first allegation. It is possible such a thing could happen but the prior history provides a more realistic context for that act. Although remoteness in time can reduce the probative value of such evidence, in this case, because the time periods of the conduct are explicable by the families living in different cities and visiting on occasions rather than having more frequent contact, I do not think that the gap derogates from the probative value of the evidence in providing a context for the charged acts. The mother's response, or lack of response, to the complainant's complaint about the accused in his bedroom on Easter Sunday 1978 is capable of providing an explanation for why the complainant did not complain to her mother after the charged acts. [Her Honour then concluded that certain other evidence did not have probative value]. As for the other evidence which I do consider has probative value, the jury can be given the usual appropriate directions about how not to misuse that evidence as showing a tendency or propensity on the part of the accused. Therefore I am not satisfied there is prejudice to the accused from that evidence which outweighs the probative value of the evidence, therefore the proposed evidence I have particularised in those paragraphs of the complainant's statement can be admitted". DIRECTIONS GIVEN AT THE TRIAL 6As the complainant gave context evidence at the trial to the effect of that referred to above, the trial judge gave the jury the following directions in the course of her Summing-Up: "You heard evidence from [the complainant], about acts by the accused towards her in 1978 and 1979 before the acts which are the subject of the charges. That evidence was given to give you what the Crown says is a realistic context for the acts in the charges. Otherwise you might have thought that apparently isolated acts occurring without any background or lead up might seem strange or odd to you and that might have impacted on your assessment of [the complainant's] credibility. So you were told about those previous acts to avoid that strangeness or unreality that you might have considered arose from the evidence. There was a second reason why the Crown presented that evidence to you and that was because [the complainant] said that when she told her mother after the incident in the accused's bedroom in 1978 at his home in Canberra that the accused had hurt her, she said her mother did not ask for any details and she felt that she was in trouble. The Crown says that that may explain why [the complainant] did not tell her mother or anyone else at the time about what she says the accused did to her on the occasions in the charges. I will come back to that subject of not complaining at the time later. However, they are the only two purposes for which you can consider that evidence of what [the complainant] says happened in 1978 and 1979 are (a) to give the other acts a context, and (b) to explain why she may not have told her mother or anyone else about the acts which are the subject of the charges. You must not use the evidence of that other conduct of the accused which [the complainant] says happened in 1978 and 1979 as establishing a tendency on the part of the accused to commit offences of the type he is charged with. You must not substitute the evidence of the other acts in 1978 and 1979 for the evidence of the offences on the indictment. So you cannot say well we think he did something there so we will substitute that for count 1. You cannot do that. And you must not say to yourselves that because the accused may have done something with the complainant on another occasion that he must have done what he is charged with on the occasions he is charged with". THE ADMISSIBILITY OF CONTEXT EVIDENCE 7As the Crown did not rely upon the subject evidence to establish a propensity of the appellant to commit the offences with which he was charged, ss 97 and 100 of the Evidence Act 1995 were inapplicable, as were the principles stated in Pfennnig v R [1995] HCA 7; 182 CLR 461 concerning the admissibility of such evidence. 8Instead, the Crown tendered the evidence as "context" evidence that assisted in the evaluation of the complainant's evidence, in the same way as context evidence assisted in Roach v R [2011] HCA 12; 242 CLR 610: " ... Here the complainant gave direct evidence both of the alleged offence and of the "relationship" evidence. The latter evidence, which included evidence of other assaults, was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant's conduct on the day of the offence would not appear "out of the blue" to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury" (at [42], citation omitted). As observed by Gleeson CJ in HML v R [2008] HCA 16; 235 CLR 334 at 352, evidence is admissible if it assists in the assessment of other evidence. 9Context evidence given by a complainant may also assist in explaining his or her conduct, as in not complaining immediately about the conduct the subject of the charges (see for instance Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 at [80]). 10Use in these ways must be distinguished from use of the evidence to indicate that it is more likely that the accused acted as alleged. Unless the requirements for propensity evidence are satisfied (as to which, see [7] above), such evidence may only be led to explain the complainant's evidence or conduct, not the conduct or mental state of the accused, including any sexual interest of the accused in the complainant (Qualtieri at [73] and [85] - [87]; DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [30]; ES v R (No. 1) [2010] NSWCCA 197 at [38] - [40] and BBH v R [2012] HCA 9; 245 CLR 499 at [152]). 11Even if otherwise admissible, context evidence is subject to mandatory exclusion under s 137 of the Evidence Act if its probative value is outweighed by the danger of unfair prejudice to the accused. GROUND OF APPEAL 1 - ADMISSION OF CONTEXT EVIDENCE 12The appellant first submitted that the trial judge erred in admitting the evidence of the third Easter 1978 incident (see [4] above) but rejecting the evidence of another incident that occurred on that visit in which the appellant threw the complainant into a swimming pool, leading to the complainant's family visit being cut short. The appellant submitted that this further incident showed, contrary to what might be inferred from the other incident, that the complainant's parents were prepared to act on a complaint by her. However it was not suggested in argument that the complainant's parents could have been uncertain as to whether the appellant threw the complainant in the pool. That incident was thus different from that, in the bedroom, which resulted in the complainant thinking that her mother did not believe her. As the trial judge found, and contrary to the appellant's submission, the bedroom incident was capable of providing an explanation for the absence of complaint by the complainant after the charged acts allegedly occurred in 1983 and 1986. I accept the following submission of the Crown as to why the impugned evidence had probative value in providing an explanation for the complainant's lack of a timely complaint: "Even when nearly caught (the bedroom incident] the appellant was able to provide a response to adults to justify his actions and to effectively silence the complainant. This was telling evidence to explain the complainant's interaction with the appellant and her failure to make complaint concerning the charged incidents. When the complainant was aged 7 the appellant countered any challenge to his conduct by providing a credible but false version of the incident just as when the complainant was aged 15 and was observed to appear upset and unwell and act out of character after the charged incidents the appellant was capable of deflecting scrutiny by falsely attributing the appearance to an incestuous relationship with her cousin" (Submissions dated 30 October 2012). 13Further, I do not consider that the trial judge erred in rejecting the appellant's submission that the lapse of time between the 1978 - 9 and 1983 - 6 incidents deprived the former of any probative value. I accept, as her Honour did, that as the families lived in different cities and had only infrequent contact, the evidence retained probative value despite the lapse of time between the incidents. 14The appellant also submitted that the trial judge should have cautioned the jury that the complainant's evidence concerning the 1978 and 1979 events might be unreliable due to her age at the time and their remoteness in time from the trial. The appellant was unable to call in aid s 165 or s 165A(2) of the Evidence Act, dealing with cautions concerning unreliable evidence and children's evidence, as these sections only apply where a request for a relevant caution is made at the trial and no such request was made here. To my mind, the absence of such a request confirms that in the context of the present case the jury would have been well aware of the need to assess with care the evidence of a witness such as the complainant, about what had happened to her decades earlier when she was a young child. No further direction was necessary or appropriate. 15The appellant further submitted that the probative value of the context evidence was outweighed by the danger of unfair prejudice to the appellant and that it should have been excluded pursuant to s 137 of the Evidence Act. He relied in particular upon observations of Hodgson JA in ES v R (No. 1) at [43], including the following: "If [the impugned evidence] were considered as doing no more than enabling the charged acts to be seen in context, and as not supporting the complainant at all by way of motive/tendency reasoning, its probative value was at best extremely modest ... [and] was plainly outweighed by the danger of unfair prejudice from its probative force as motive/tendency evidence ... " 16However in that case his Honour was dealing with evidence of the complainant's sister of an uncharged incident of which the complainant gave no evidence. The position may well be different where context evidence is given by the complainant, as illustrated by Hodgson JA's judgment in ES v R (No. 2) [2010] NSWCCA 198: "62 In my opinion also, leaving aside any corroborative effect from the evidence of other witnesses, the probative value of this evidence [of the complainant] as context evidence was not outweighed by any danger of unfair prejudice. The crucial question before the jury was whether they accepted beyond reasonable doubt the complainant's evidence of the charged acts; and evidence by the complainant herself of the context in which the charged acts occurred would not in my opinion be considered as unfairly or unreasonably bolstering the credibility of the complainant, as against that of the appellant, in relation to the charged acts". 17I do not consider that the trial judge erred in taking the view that: "Although the acts the subject of the counts on the indictment, could conceivably occur in isolation the jury may think it strange and unrealistic that out of the blue the accused put [his] tongue into his niece's mouth, that being the first allegation. It is possible such a thing could happen but the prior history provides a more realistic context for that act" (Judgment dated 16 February 2011, p 5). 18Furthermore, her Honour did not in my view err in taking the view that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant and therefore declining to exclude the evidence under s 137 of the Evidence Act. As her Honour intended when admitting the evidence, she later directed the jury as to the limited use that could be made of it. There is no reason here to conclude that those directions would have been ineffective. GROUND OF APPEAL TWO: DIRECTIONS CONCERNING THE CONTEXT EVIDENCE 19As no complaint was made at the trial about the judge's presently relevant directions to the jury, the appellant requires the Court's leave to rely upon this ground of appeal (r 4 of the Criminal Appeal Rules). As pointed out in KSC v R [2012] NSWCCA 179, an applicant for leave must establish that a miscarriage of justice has occurred and that he has lost a real chance of acquittal, the requirements of r 4 being no mere technicality (at [6] and [7]). 20The appellant first submitted that the trial judge should have gone beyond her direction to the jury that it not use the evidence to reason that the appellant had a tendency to commit offences of the type with which he was charged to direct that the jury not use the evidence to reason that he had a motive to commit the offences, in the sense that he had a sexual interest in the complainant. However, the appellant conceded that, in relevant respects, the trial judge's directions conformed with the suggested directions in the Supreme Court Bench Book. These received judicial endorsement in Qualtieri v R at [81]. 21Those directions warned the jury against using context evidence "as establishing a tendency on the part of the accused to commit offences of the type charged" (ibid) but did not (at least expressly) caution against use to indicate sexual interest of the appellant in the complainant. In Qualtieri the trial judge had indicated to the jury that it could use evidence of uncharged acts to indicate the appellant's sexual interest in the complainant. On appeal, this Court stated that that was an impermissible use because it amounted to use of the evidence to indicate the propensity of the appellant to commit the charged acts, but the Court did not suggest that the direction should have contained any express warning against that use. Indeed in R v ATM [2000] NSWCCA 475, Howie J (with the concurrence of Sully and Whealy JJ) said that he thought it better to avoid introducing into jury directions "terms such as 'guilty passion' or 'sexual interest'" (at [76]). 22In oral argument, the appellant referred to Rodden v R [2008] NSWCCA 53; 182 A Crim R 227 in which Hall J (with the concurrence of Beazley JA and Fullerton J) expressed the view that in the circumstances of that case there ought to have been directions to the jury that included: "That they could not use any such evidence [of prior conduct] as tending to show that, at the time of the alleged offences, the appellant had wrongful sexual feelings towards the complainant and, therefore, it was more likely that he committed the offences in question" (at [125]). 23However, the circumstances of Rodden were different to the present case. In that case the impugned evidence was not of prior sexual acts but of telephone conversations arguably establishing the appellant's sexual interest in the complainant. There was clearly a need for the use that could be made of that evidence to be the subject of explicit directions. The decision does not in my view therefore govern the present case and, bearing in mind the guidance provided by Qualtieri, I do not consider that the trial judge's directions concerning the context evidence were erroneous. As a result leave should not be granted under r 4 of the Criminal Appeal Rules to raise this ground of appeal. CONCLUSION 24As I consider that the first ground of appeal fails and that the appellant should not be given leave to raise the second ground, the appeal should be dismissed. 25HALL J: I agree with the reasons of Macfarlan JA and that leave should not be given to the appellant to raise the second ground of appeal. I also agree with the order proposed by his Honour that the appeal should be dismissed. 26CAMPBELL J: I agree with Macfarlan JA. ********** 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: 13 March 2013