District Court New South Wales Medium Neutral Citation: R v Steele [2015] NSWDC 100 Hearing dates: 9 February 2015 - 12 February 2015 Date of orders: 12 February 2015 Decision date: 12 February 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Tendency evidence to be admitted Catchwords: CRIMINAL LAW – Judgment – Application to admit tendency evidence – Joint concoction - Unconscious contamination - Acceptance of denials of joint concoction by complainants Legislation Cited: Evidence Act Cases Cited: BJS v R [2011] NSWCCA 239 BJS v R [2013] NSWCCA 123 BP v R;R v BP [2010] NSWCCA 303 FB v Regina; Regina v FB [2011] NSWCCA2127 Hoch v R [1988] HCA 50; (1988) 165 CLR 292 R v Andrews [2003] NSWCCA 7 R v Colby [1999] NSWCCA 261 R v Ellis [2003] NSWCCA 319 R v JG [2014] NSWCCA 138; BC2014061; 21(9) Crim LN 136 R v Le [2000} NSWCCA 49 R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 Texts Cited: ALRC Report 102 page 380, footnote 61 Category: Procedural and other rulings Parties: The Crown Anthony James Steele Representation: Counsel: Mr L Carr - Crown Mr P Marr - Accused Solicitors: Director of Public Prosecutions Legal Aid Commission - Accused File Number(s): 2014/30738 Publication restriction: There is to be no publication of the names of the complainants or of any material which may tend to identify the complainants Judgment 1. HIS HONOUR: This judgment concerns the admissibility of some evidence which the Crown wishes to lead at trial. The Crown says it is admissible as tendency evidence. The accused objects, arguing, amongst other matters, that there was a real risk that the evidence was the product of joint concoction, or, as Mr Marr ultimately argued, unconscious contamination. 2. I will take some time to look at the history regarding the admissibility of tendency evidence. 3. It took a while for some lawyers and judges to notice that the introduction of the Evidence Act brought about fundamental changes concerning the admissibility of evidence at trials. In some areas of law it has taken almost 20 years to abandon approaches to the admissibility of evidence which were, in truth, killed off once the Evidence Act commenced operation. Over the years repeated attempts have been made to ignore the plain words of the Act in favour of old common law rules. 4. Perhaps the best example of this concerns the admissibility of tendency evidence and, in particular, the effect of a risk of joint concoction or unconscious contamination on the probative value of such evidence. In 1988 the High Court spoke about this in Hoch v R [1988] HCA 50; (1988) 165 CLR 292 (5 October 1988). That ruling presented a significant impediment to the tender of such evidence, particularly by the prosecution. But then in 1995 the rules changed with the introduction of the Evidence Act. Unfortunately, and wrongly, on many occasions the Hoch rule continued to be applied. 5. Writing after his retirement from the High Court, Mr Dyson Heydon, in delivering the Paul Byrne Memorial Lecture last year, summarised the position post Evidence Act thus: "The importation of a Hoch qualification was a gratuitous judicial creation unsupported by any explicit statutory language. Indeed, the judicially generated rebirth of the Hoch qualification in, or its grafting onto, a statute was a rather astonishing event, because it took place in the teeth of the legislative murder of its common law existence". 1. Mr Heydon makes his position quite clear in his paper: "The Hoch qualification should not have been introduced into sections 97 and 98". 1. As he notes, although the legislature tried to kill Hoch, it survived, perhaps most notably in 1999 in R v Colby [1999] NSWCCA 261, where the Court of Criminal Appeal held that a reasonable possibility of concoction meant that the evidence "must" be withheld from a jury. 2. The Court of Criminal Appeal then had a go at eradicating Hoch in R v Ellis [2003] NSWCCA 319. A five judge bench decision in which the fact that the Evidence Act had changed the rules regarding tendency evidence was made abundantly clear, might have thought to have consigned Hoch to history, but there continued to be pockets of resistance and, zombie-like, Hoch just would not die. 3. Hoch is regularly quoted in applications of this kind and the mandated rejection of evidence spoken about in Colby is referred to on occasion despite the fact that that decision was effectively overruled in Ellis. The most prominent of the decisions attempting to keep Hoch alive post Ellis was BP v R; R v BP [2010] NSWCCA 303, although other cases such as R v Le [2000] NSWCCA 49 and R v Andrews [2003] NSWCCA 7, which actually predated Ellis, and the two BJS decisions, BJS v R [2011] NSWCCA 239 and BJS v R [2013] NSWCCA 123 advanced a different and what I would describe as a more accurate view. 4. Fortunately, the Court of Criminal Appeal has now begun to speak with one voice. The recent history is largely dealt with in a restricted judgment which I will call J, delivered late last year. The preponderance of views now emanating from the Court of Criminal Appeal is what I, with respect, believe to be correct. Decisions such as Colby, BP and FB v Regina; Regina v FB [2011] NSWCCA 217 are no longer good law in so far as they suggest that a real possibility of concoction requires a rejection of tendency evidence. I will follow the decisions of Le, Andrews, Ellis, the two BJS cases and J. I will focus on the words of the Evidence Act. I will apply those words in deciding the issue before me. 5. The first step, therefore, is for me to assess the probative value of the evidence. Is it significant? As part of that assessment I will not consider the likelihood that the three relevant witnesses have jointly falsely concocted their stories, because each implicitly denied that they had. All three girls said that what they said in interview with police was the truth. Necessarily that means that they were denying concoction. R v Shamouil [2006] NSWCCA 112; (2006) 66NSWLR 228 and R v XY [2013] NSWCCA121; (2013) 84 NSWLR 363 and R v JG [2014] NSWCCA 138; BC2014061; 21(9) Crim LN 136 say that I should accept that evidence. So does Mr Heydon in his paper. It is no part of my function to decide issues surrounding the credibility of the witnesses when they deny concoction, the question as to whether there was concoction being a matter properly left for the jury. 6. In this case, Mr Marr properly conceded that an assessment of the credibility of the three girls was no part of my function at this stage. Mr Marr asked me to accept not that the girls were deliberately lying, but that there has been some unconscious contamination. I believe Mr Marr's concession to be correct and, indeed, unavoidable in the light of the recent decisions. That reduces the issues regarding the question of contamination dramatically. 7. Before I get there, however, I have to start at the beginning, by considering whether, ignoring the possibility of concoction and contamination, the proposed evidence has substantial probative value. It is Mr Marr's primary submission that the Crown's application falls at this hurdle. 8. The complainant and the two proposed tendency witnesses gave evidence of conduct on the accused's part which had, to use an old term but one that is accurate in this case, striking similarities. All three were around the same age, early in their teenage years; the alleged assaults occurred in a relatively fixed period of time of less than two years; all three were females; all three describe the accused touching their genitals with his fingers; all three were staying overnight at the accused's home at the time of almost all of the alleged assaults; all three were again almost all the time wearing night attire at the time of the assaults; they all allege repeated assaults; there is evidence that they were all tickled by the accused in an inappropriate way; and they all describe the accused's actions in a way which made it clear that he treated their consent, or lack of it, as irrelevant. 9. It is not going too far by any means to say that the evidence establishes a tendency to have a sexual attraction to girls of that age and to adopt a particular modus operandi to give effect to that sexual attraction. 10. Also striking is what they do not allege. In particular, none of the witnesses refer to the accused seeking or demanding or forcing them to touch or stimulate his penis in any way; there are no allegations, for example, of fellatio or any other form of penile intercourse, let alone him demanding that the witnesses rub his penis. As someone who has dealt with allegations of child sexual assault over many, many years, I find what the witnesses do not allege as being unusual. 11. Of course there are differences too, as Mr Marr pointed out. Most notably, the complainant alleges cunnilingus and actual penetration of her genitals by the accused's finger; something the other two witnesses do not allege. Also, the complainant denies being touched on the breasts; something the other two witnesses say occurred repeatedly. Despite these differences, I regard the circumstances I have referred to as demonstrating a real tendency on the part of the accused to act in the way the witnesses describe. In particular, to have a sexual attraction towards girls in their young teens and, thus, to sexually assault girls in their early teenage years who are temporarily residing at his home, using what could be regarded as innocent tickling as one of the number of means to achieve his objective. 12. But as I mentioned earlier, that is not the end of the matter regarding probative value. I will consider the effect of the risk of what Mr Marr called unconscious contamination on the probative value of the evidence. 13. The first thing to note is that, as might be expected, the witnesses did not give consistent evidence about such things as what they knew of complaints by the others and when they knew it. In general, where that has happened, I have been prepared to proceed on the assumption that the evidence most favourable to the accused should be accepted. I have done this not because I think that evidence should be favoured but because the decision I reach would be the same even if I was to make different findings of fact. I also note that, as might be expected, the mothers of the complainant and the two tendency witnesses were anxious to discover whether, and to what extent, their daughters alleged sexual contact with the accused. As part of that process, on occasions they questioned their daughters in such a way to reveal what another girl was alleging. The centrality of one particular mother, who had a real motive to hurt the accused, (him having left her for a 17 year old girl formerly employed by her), in the making of the allegations is a matter suggesting the opportunity for contamination. 14. But there is other evidence too which needs to be considered in determining the likelihood that the evidence of the witness is the product of unconscious contamination. Here, one of the differences I referred to becomes important. If these allegations, or at least the particulars of them, were unconsciously contaminated by one learning what another is alleging, why then did they not all allege cunnilingus, for example? The mother of one of the girls gave evidence that she had learnt that another of the girls was alleging some form of oral sex. Clearly anxious to find out the extent of what the accused did to her daughter, she asked her whether oral sex was involved and told her that was something which the other girl claimed had occurred. But the fact that, in response her daughter did not also make an allegation of oral sex, speaks eloquently about the likelihood that her allegations were contaminated. That the complainant would deny being touched on the breasts also suggests either that she has not learnt about the details of the allegations made by the others or that, having learnt about them, she has not unconsciously changed the allegations she makes in order to fit in with the versions given by the others. 15. I am fully aware that, at first blush, reliance on differences between the events described by the complainant has a heads-you-win/tails-you-lose flavour about it, where I have relied on similarities earlier in this judgment. In truth, there is nothing illogical in my approach. The examination of similarities and differences was undertaken earlier in order to decide whether the evidence was substantially probative of the tendency. At this stage the analysis is undertaken in determining the level of risk that the similarities have come about through unconscious contamination. 16. I should also mention some evidence which came into the possession of the Crown somewhat belatedly. It appears that first complaint by one of the witnesses was made to her grandmother and father much earlier than the evidence had otherwise revealed. This was a substantial impediment to finding a risk that her evidence was a product of unconscious contamination. 17. I will go so far as to say that the evidence demonstrates no possibility at all that the probative value of the tendency evidence is in any way affected by unconscious contamination. I thus find that the evidence which the Crown wish to tender does have significant probative value. 18. The next step is to consider the risk of prejudice to the accused. 19. Curiously, and as Mr Marr pointed out, s 101 of the Evidence Act does not use the words "unfair prejudice". The omission of the word "unfair" is difficult to understand. All probative evidence adduced by the Crown has a prejudicial effect upon the accused. Unless the concept of unfairness is introduced into the test in s 101(2), then no evidence would ever be admitted as tendency evidence, because as soon as it had the significant probative value required by s 97, it would automatically have an equal prejudicial effect. No tendency evidence could ever satisfy the test under s 101(2). 20. Having been critical of one aspect of Colby, I should note the following accurate statement on the issue of prejudice. At paragraph 97: "Section 101(2) further restricts tendency and coincidence evidence by precluding its use by the prosecution, unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. Prejudice is not established by the mere fact of the weight of the evidence in relation to the ultimate issue, the focus is upon the danger that the tribunal of fact would use the evidence upon a basis logically unconnected with the issues in the case". 1. In its review of the Evidence Act the Australian Law Reform Commission, ALRC Report 102, noted, at page 380, footnote 61: "The expression 'prejudicial effect' is not qualified by the word 'unfair'. One commentator, Peter Bain, considers the significance of this omission, but concludes, correctly it is suggested, that properly constructed prejudice in question is unfair prejudice". 1. The Commission then refers to Mr Bain's article and cites a number of cases, including Colby, the decision of the CCA to which I have just referred. 2. I am satisfied, therefore, that, properly understood, s 101(2) is to be interpreted as requiring me to balance the probative value of the evidence against any unfair prejudicial effect it may have on the accused. In doing so, I am interpreting s 101 in a way which avoids an absurdity. It is often said that admission of tendency evidence is so powerful that the chances of acquittal are dramatically diminished. All that does is point to the high probative value of the evidence, it does not suggest that jurors will look at matters unfairly or in a manner logically unconnected with the issues in the case. The prosecution is not disentitled from bringing a powerful Crown case because of s 101 of the Evidence Act. 3. Any risk of unfair prejudice has to be assessed in the light of directions given to the jury by the trial judge. The law proceeds on the basis that jurors follow judges' directions. Research into the behaviour of jurors bears out the accuracy of that approach. Where is the possible unfair prejudice then? Mr Marr referred to the fact that the two tendency witnesses make allegation of things which they are unable to particularise. Whether that is unfairly prejudicial need not be determined, as I expect that such context evidence would not be admitted, with the evidence of the tendency witnesses being restricted to events about which they can give particulars. 4. Next, Mr Marr referred to the cumulative effect of the tendency witnesses corroborating each other as to an event where they were both present, in circumstances where the complainant's evidence would otherwise be uncorroborated. In so far as I understand Mr Marr's point, it seems to me that there is nothing unfair or illogical in the process of reasoning that the jury might adopt, namely, the two tendency witnesses corroborate each other, so it is more likely that they are telling the truth, which, in turn, makes it more likely that the complainant is telling the truth. That process of reasoning does not involve any misuse of the evidence at all. 5. The result is that I can find no unfair prejudice to the accused. In light of my early finding that the evidence has substantial probative value, I have therefore decided that the tendency evidence will be admitted. ********** 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: 24 June 2015