Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DS v R [2018] NSWCCA 195 Hearing dates: 27 June 2018 Decision date: 10 September 2018 Before: Basten JA at [1]; Wilson J at [14]; Lonergan J at [119] Decision: (1) Appeal against conviction is upheld. (2) Conviction and sentence are quashed. (3) Matter remitted to the District Court. Catchwords: CRIMINAL LAW – conviction appeal – sexual intercourse without consent – homosexual intercourse with male under 10 years – admissibility of tendency evidence – tendency incidents the subject of acquittals – acquittals based upon failure of Crown to rebut common law presumption of doli incapax – whether tendency evidence left to jury on a basis that controverted acquittals EVIDENCE – tendency evidence – probative value –prior conduct the subject of acquittals – acquittals based on failure to prove offender capable of criminal intent – whether tendency evidence relevant only to actus reus of further offending – basis on which tendency evidence could be left to jury – tendency to "sexually assault" children – admissibility of recorded admissions to tendency incidents Legislation Cited: Crimes Act 1900 (NSW), ss 61D, 78H Evidence Act 1995 (NSW), ss 97, 99, 101, 137 Cases Cited: BC v R [2015] NSWCCA 327 Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206 Gilham v R 178 A Crim R 72; [2012] NSWCCA 131 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Paul Campbell v R [2018] NSWCCA 87 Regina v Z [2000] 2 AC 483 RP v The Queen (2016) 259 CLR 641; [2016] HCA 53 Saraswati v The Queen (1990-1991) 172 CLR 1; [1991] HCA 21 The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55 Category: Principal judgment Parties: DS – Appellant Regina - Respondent Representation: Counsel: Mr I. McLachlan – Appellant Mr N. Adams – Crown Solicitors: D. Miralis – Appellant C. Hyland – Solicitor for Public Prosecutions File Number(s): 2015/83514 Publication restriction: A statutory non-publication provision operates to prevent publication of any information which could tend to identify the complainant, SS, or the witness BS. Decision under appeal Court or tribunal: Sydney District Court Jurisdiction: Criminal Date of Decision: 17 March 2017 Before: Berman SC DCJ File Number(s): 2015/83514 Judgment 1. BASTEN JA: I agree with Wilson J that the conviction appeal should be upheld and the conviction of the appellant quashed. 2. I also agree with the reasoning of Wilson J that this conclusion follows because of the way that the evidence of the appellant's earlier conduct with his 4 year old niece (that is, placing her hand on his penis) was left to the jury. However, in my view the evidence should have been rejected as inadmissible on the charges of fellatio with his nephew some six or seven years later. 3. The question of inadmissibility involves three steps. First, there is the principle that a prosecutor cannot rely upon conduct which has been the subject of a previous charge and acquittal in a way which would controvert the acquittal. [1] The scope of that principle will depend upon the basis of the acquittal. In cases which have been tried before a jury, an acquittal may reveal no more than that the jury was not convinced beyond reasonable doubt as to some element of the offence. That is not the present case; the acquittal of the appellant with respect to the earlier charge concerning his conduct with BS was expressly identified by the magistrate as based on the failure of the prosecutor to negative a presumption of doli incapax, namely a presumption that, being under 14 years of age at the time of the alleged offending, he was not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacked the capacity for a criminal intent. [2] 4. Secondly, the acquittal with respect to the earlier offence does not necessarily mean that the conduct the subject of the charge may not be relevant and admissible in a subsequent criminal trial for a different offence. [3] However, to ensure that the evidence is not used in a manner which controverts the acquittal, it is necessary to have careful regard to the basis upon which it is to be presented to the jury. If, as in the present case, it is relied on as tendency evidence, it will be necessary to consider the operation of s 97 and s 101 of the Evidence Act 1995 (NSW). 5. Section 97 is a prohibition on the admission of evidence of character, reputation, or conduct, "or a tendency that a person has or had" to prove that the accused has or had a tendency "to act in a particular way, or to have a particular state of mind". The prohibition is lifted only where notice has been given and the court is satisfied that the evidence has "significant probative value". 6. Section 101(2) provides that tendency evidence called by the prosecution "cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have". 7. The operation of s 97 has caused difficulty, not least because of the vagueness of its language and the absence of any standard or criterion of admissibility beyond the evidence having significant probative value. Apart from the practical consideration that leading evidence of conduct on other occasions is likely to expand the scope of a trial and distract from the elements of the specific charge, inadmissibility is premised on the danger that such evidence will be misused adversely to the accused and will therefore have a "prejudicial effect", leading to the weighing exercise required by s 101. 8. As explained by Gageler J in IMM v The Queen: [4] "The nature of tendency evidence adduced by the prosecution in a criminal trial is that it is evidence of another occasion or occasions on which the accused acted in a particular way. The evidence is adduced in order to provide a foundation for an inference that the accused has or had a tendency to act in that way or to have a particular state of mind, the existence of which tendency makes it more probable that the accused acted in a particular way or had a particular state of mind at the time or in the circumstances of the alleged offence. [5] " 1. The inference is to be drawn by the jury based upon their understandings of the behaviour of people in given situations which will usually be based on common experience. It follows that a ruling on admissibility should have regard to common experience and some assessment of the process of reasoning likely to be adopted by a randomly selected jury. Common understandings are not necessarily based on experience and may be the product of stereotyping based on no more than prejudice. Reasoning is expected to weigh such factors as the similarity of the conduct on different occasions and the likelihood that a tendency established at one time will be exhibited again, possibly years later. 2. Thirdly, the evidence of the appellant's alleged conduct in relation to his niece must raise two questions for consideration. The first is whether, objectively, there is any basis to conclude that the way an adolescent (11 year old) boy, not proved to have a mature understanding of the distinction between right and wrong, behaves in relation to a four year old niece gives any reliable indication as to a tendency to sexually abuse a nephew some seven or eight years later when intellectual and emotional maturity has increased. The second question is whether it is right to expect a jury to have any experience of such matters, or at least sufficient experience to draw inferences in the context of a criminal trial. 3. There is little basis to conclude that a tendency to act in a particular sexual manner at an early age, without the necessary understanding of its wrongfulness, would continue to affect the person's behaviour, after achieving a sufficient understanding of its wrongfulness. The evidence therefore had little or no probative value. Further, the fact that it is presented to the jury will no doubt lead them to infer that it is relevant and therefore provides a sound basis for them to draw inferences, the validity of which their own experiences may not allow them to assess. That factor involves a significant risk of prejudicial effect. For these reasons, the evidence should have been rejected in any event, no matter how it was left to the jury. 4. There is a further consideration. The prosecution, conscious of the need not to controvert the acquittal, supported the admissibility of the evidence on the basis that it was probative of the conduct of the accused in relation to the charged offences, rather than any mental state. While the law distinguishes between a mental state (mens rea) and the offending conduct (actus reus) it is by no means clear that the use to which the evidence may be put can be differentiated in this way. For example, where a man is charged with non-consensual sexual intercourse with a woman and denies that intercourse took place, evidence that the accused had consensual sexual intercourse with other women on other occasions could hardly render the actus reus more probable. 5. For these reasons, in addition to those given by Wilson J, the evidence of the appellant's alleged sexual conduct with his niece should not have been admitted. The conviction must be quashed. 6. WILSON J: On 23 November 2016, the applicant, DS, pleaded not guilty upon arraignment before his Honour Judge Berman SC DCJ and a jury in the District Court of New South Wales on three counts: 1. Count 1: Between 30 June 1983 and 1 October 1983 at Sydney in the State of New South Wales did have sexual intercourse with SS without his consent and knowing that SS had not consented to the sexual intercourse, the said SS being under the age of 16 years (s 61D(1) of the Crimes Act 1900 (NSW)); 2. Count 2: On or about 30 June 1984 at Sydney in the State of New South Wales did have homosexual intercourse with SS, he the said SS being a male person under the age of 10 years, namely 8 years (s 78H of the Crimes Act) 3. Count 3: Between 30 November 1985 and 1 February 1986 at Sydney in the State of New South Wales did have homosexual intercourse with SS, he the said SS being a male person under the age of 10 years, namely 9 years (s 78H of the Crimes Act). 1. DS is the uncle of SS, and the charges span a period when DS was aged 15 to 18 years and SS was aged 7, 8, or 9 years old. 2. On 2 December 2016, the jury returned a verdict of guilty with respect to count 3. The jury was discharged without returning verdicts with respect to counts 1 and 2. 3. On 17 March 2017 the trial judge sentenced the appellant to a term of imprisonment of 5 years, with a non-parole period of 2 years and 6 months, expiring on 1 June 2019. 4. The appellant appeals against his conviction on count 3 and, to the extent required, seeks leave to appeal, on the following grounds: 1. With respect to the evidence of BS (i.e. the appellant's niece), his Honour erred: 1. In admitting her evidence on the basis of tendency evidence; and 2. In admitting evidence of a pretext phone call between BS's mother and the appellant (i.e. Exhibits 11 and 12). 3. the trial judge erred in directing the jury regarding the actual use of the evidence of BS – namely, that it could be used as evidence to demonstrate a tendency on the part of the appellant to "sexually assault" young relatives of his. 1. The verdict of guilty for count 3 is unreasonable having regard to the nature and quality of the evidence and the jury's failure to agree upon verdicts for counts 1 and 2. 2. The sentence imposed was manifestly excessive. 1. Ground 1(c) was added at the hearing of the proceedings, with the leave of the Court. The conviction appeal Pre-trial Issues 1. Prior to the empanelment of the jury, the trial judge heard evidence and argument over two days connected with the admissibility of evidence the Crown sought to lead at trial. The disputed evidence was ultimately admitted. The admission of this evidence forms the basis of the complaints raised by ground 1(a) – 1(c). 2. There were two issues for his Honour's determination: whether "tendency" evidence should be admitted; and whether evidence of what was referred to as "a pretext call" should be admitted. The appellant objected to the admission of the evidence. The Tendency Evidence 1. BS is the daughter of a sister of the appellant's, and thus his niece. She is cousin to the complainant. She made a statement to police on 10 February 2014 (then aged in her thirties) complaining of sexual assaults committed upon her by the appellant, her uncle, when she was aged about 4 years and he was aged about 13 years old. At that time in BS's life she was often left at her maternal grandparents' house, where the appellant lived, to be cared for by her grandmother when her parents were at work. It was during these occasions that, she asserted, the appellant sexually assaulted her. In her statement to police, tendered on the voir dire, BS outlined two or three incidents. 2. The first incident occurred when BS and the appellant were lying on the appellant's bed under blankets watching television. The appellant is alleged to have guided BS's hand onto his exposed penis and caused her to move her hand up and down. At some point he said to stop and the two went outside. 3. A second incident occurred two or three weeks later in similar circumstances to the first, although BS and the appellant were in the main bedroom of the appellant's house on that occasion. 4. There was at least one further assault of a similar nature, and possibly more, but BS could not fix in her mind when these things occurred. She believed that all of the alleged assaults occurred over a two to three month period. At some point during this time the appellant told her not to tell her mother, but he did not threaten her. BS thought that the activity was given the character of a secret game between them. 5. BS told no-one until she was aged 7 or 8 years, at which time she told her mother that "When I used to stay at nana's, Uncle D used to make me touch him". No official complaint was made at the time and it appears that the matter was not then raised within the broader family. 6. After the death of her grandmother, the appellant's mother, in 2012, and having heard in 2014 that her cousin SS was intending to make a complaint to police about their uncle, BS felt able to make a formal complaint herself. The Evidence of Admissions (the pretext call) 1. After BS made her statement to police, her mother, Ms W, participated in a telephone conversation with the appellant which was lawfully recorded. This was the "pretext call". On 2 July 2014 Ms W telephoned the appellant and, after asking after family and exchanging other pleasantries, she asked the appellant about "what happened and what the reason is behind it. Why you did what you did to the kids". The "kids" referred to were BS and another female child. The appellant responded, "Yeah, it's bad isn't [? it] I know […] But it's like, you know, I regret that every day you know. […] It was just a silly young mistake you know. [..] Like I mean I look back and I, you know, always, um thinking how bad that was." 1. He went on to comment that "it doesn't feel right", and to refer to his own young age at the time, saying, "I'm not making excuses about anything like I was 12 years old or 11 years old whatever. I can't even remember if I was 10." 1. The appellant said that he did not understand why "it" had happened, but observed, "[..] we were kids we were just pretending to be adults", referring to it as "kind of like doctors and nurses sort of stuff". 2. When Ms W referred to their nephew, the complainant, in the context of whom "it" happened to, the appellant seemed bemused, asking, "what about [the complainant]?" 3. A second call was made by Ms W to the appellant but, by that stage, he had sought legal advice and told his sister he would not discuss the matter further with her. 4. The appellant was charged by police with two counts of incite act of indecency pursuant to the now repealed s 76A of the Crimes Act (a charge which, having regard to the allegation that the appellant took BS's hand to place it on his penis, would in fact have been legally unavailable due to the principle in Saraswati v The Queen (1990-1991) 172 CLR 1; [1991] HCA 21). The charges were heard in the Local Court (because, although the appellant had been a child at the time of the alleged commission of the offences, he was not charged until after he turned 21 years of age) and ultimately dismissed. 5. No issue was taken by the appellant at the Local Court hearing with the acts alleged; instead the issue for the determination of the magistrate was whether the Crown had rebutted the doli incapax presumption. The presumption arose because, at the time of the alleged offences against BS, the appellant was aged 13 years and 2 months to 13 years and 4 months, and thus, at common law, there was a rebuttable presumption that he lacked the capacity to differentiate between right and wrong such as to be criminally responsible for his acts. 6. The presumption was recently explained in Paul Campbell v R [2018] NSWCCA 87 at [21] in this way (omitting footnotes): "The common law creates a presumption that a child under the age of 14 years 'lacks the capacity to be criminally responsible for his or her acts'. This is known as 'doli incapax' (incapacity for crime).The rationale for the presumption is that children are 'not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lack the capacity for mens rea'. To rebut the presumption the prosecution must establish beyond reasonable doubt that the child knew that the act constituting the crime with which they are charged is 'gravely wrong' or 'seriously wrong'. No matter how obviously wrong that act is, the presumption cannot be rebutted by reference to the act alone. What suffices to rebut the presumption will vary from case to case and the High Court in RP v The Queen explained some of the ways in which the presumption might be displaced. It requires a consideration of the child's capacity to comprehend the wrongfulness of their acts and 'directs attention to the intellectual and moral development of the particular child'." 1. The magistrate concluded that the Crown had failed to rebut the presumption, and not guilty verdicts were returned on that basis. The Arguments before the Trial Judge Tendency Evidence 1. There was no issue that notice of the Crown's intention to lead tendency evidence, as required by ss 97(1)(a) and 99 of the Evidence Act 1995 (NSW) had been given. 2. The Crown contended to his Honour that the evidence of BS was admissible as evidence of the appellant's tendency "to have a particular state of mind, namely his sexual interest in young children relatives under the age of 10 years; and his tendency to act on it, namely his tendency to indecently or sexually assault young child relatives under the age of 10 years to whom he is their uncle between the years 1980 and 1986". 1. In written submissions provided to the trial judge the Crown summarised the tendency as being a tendency "to have a sexual interest in his niece and nephew and to act upon that interest by sexually assaulting them". It was argued that, although similarity of conduct was not required, there were a number of similarities between the conduct alleged by BS and that alleged by the complainant, in circumstances where there was no basis upon which to conclude that the evidence of either was a product of concoction or contamination. The similarities pointed to were, that both children were under 10 years of age and bore a particular relationship to the appellant, being the children of his siblings; that the acts all involved the appellant instructing the children in the stimulation (either oral or manual) of his penis; that the acts were opportunistic; and that most occurred at the appellant's family home, where other relatives were present in the house generally. 2. Referring to the tests at ss 97 and 101 of the Evidence Act, the Crown submitted that the probative value of the evidence outweighed any potential unfairness to the appellant. 3. The appellant argued that the evidence should not be admitted because it could never be evidence of a tendency to "sexually assault" young child relatives, having regard to the acquittal entered against both counts relevant to the allegations of BS in the Local Court. That is, inherent in a "sexual assault" is the mens rea associated with sexual offences, a mens rea that was not established against the appellant when the charges were prosecuted. 4. It was further submitted that the evidence could not establish the appellant's tendency to have a state of mind, being a sexual interest in children, in circumstances where he was presumed incapable of forming an intent to act in a criminal way. 5. The appellant also pointed to the generality of the acts, asserting that the conduct relied upon was so general as to be capable of applying to any person alleged to have assaulted younger related children. It was submitted that the ss 97 and 101 tests were not satisfied and, even if they were, the evidence should be excluded pursuant to s 137 of the Evidence Act because of the danger of unfair prejudice. Evidence of Equivocal Admissions 1. As to the admissibility of the telephone conversation between the appellant and his sister on 2 July 2014, on the basis that the tendency evidence was admitted, the Crown sought to lead evidence of the telephone conversation because the appellant made admissions to impropriety of an apparently sexual nature with his niece, supportive of the existence of the tendencies the Crown sought to prove. 2. The appellant contended that it was unfair to permit the Crown to lead the evidence, advancing arguments that were largely based upon a misunderstanding or misapplication of relevant authorities. It was argued that, in having Ms W make the call rather than BS or the complainant, the police had acted unfairly. It was also submitted that, having obtained statements from BS and the complainant that were sufficient to support criminal charges, the police were obliged to either charge the appellant or, at least, advise him of their investigation and caution him before any person questioned him, including persons other than police officers. It was also said that the admissions to impropriety should not be used against the appellant because Ms W had not known the precise detail of the allegations made by BS or the complainant, and any admission could only be to "Chinese Whispers". The Decisions of the Trial Judge 1. On the question of the admissibility of the evidence of BS his Honour concluded that the evidence had significant probative value, based upon the similarities of conduct alleged by both children. That is, the alleged offences all occurred in the context of a particular familial relationship, with the appellant being uncle to both children; the appellant gave instructions to each child as to what each was to do to him; and the focus of the activity was on the child being instructed to stimulate the appellant's penis and nothing else. Although his Honour considered that there was a risk of unfair prejudice – the prospect that a juror could be immediately prejudiced against someone who had engaged in sexual activity with another child – but concluded that the danger could be addressed by appropriate directions. The Crown was permitted to lead the evidence to go to the tendencies it sought to establish. 2. Having admitted the tendency evidence of BS, his Honour concluded that the evidence of the telephone call in edited form (to delete references to the second female child) was also admissible. He had regard to the reliability of the evidence of the appellant's admissions concerning his conduct to BS, which were recorded; and to the absence of any coercion to compel the appellant to speak to his sister. His Honour rejected the [misconceived] contention of (then) counsel for the appellant that police should be prevented from further investigating an allegation once an actionable complaint has been made, without at least cautioning the suspect. The Evidence at Trial The Crown Case 1. The three counts alleged against the appellant at trial occurred in the period 1983 to 1986. At that time the complainant was aged 7, 8 or 9 years of age. The appellant, who is the complainant's (step) paternal uncle, was aged 15, 16, or 18 years of age. In the period covered by count 3, the count against which a verdict of guilty was returned, the appellant was aged 18 years. 2. The offences alleged against the appellant are all said to have occurred during the course of family gatherings. The complainant and his mother and step-father lived interstate, and had travelled to Sydney on each of these occasions. 3. Count 1 is alleged to have occurred during the course of a celebration of the 80th birthday of the complainant's great grandmother, Nanna Vic. The celebration took place at a public hall in Sefton, where a number of people gathered. The complainant recalled going with the appellant to a toilet block, whereupon the appellant exposed his penis and told the complainant to "put it in your mouth and move your head backwards and forwards". The appellant put his penis into the complainant's mouth; he did not ejaculate. The complainant told no-one about what had occurred. He was aged 7 at the time. 4. Count 2 is alleged to have occurred in June the following year at the celebration of the marriage of Nanna Vic. The wedding was held at the same public hall in Sefton, with many family members in attendance. The complainant recalled again going to a toilet block and seeing the appellant with his pants down around his ankles. He remembered the appellant putting his penis into his mouth and guiding his head backwards and forwards, although not roughly. The complainant was aged 8 on that occasion. 5. Count 3 refers to an incident that occurred over the Christmas – New Year period in 1985 – 1986 when the complainant and his parents were staying with the appellant's parents for the holidays. A bedroom of the appellant's family home had a kitchenette in it. The complainant recalled being in the kitchenette of that bedroom with the appellant, kneeling before him. He recalled the appellant putting his penis into his mouth, and an unpleasant salty taste. He recalled struggling to breathe and complaining to his uncle of the taste. The complainant, who was aged 9, thought that his mother and step-father and his sister were all in the house, although only he and his uncle were in the kitchenette. 6. The Crown led evidence of other uncharged sexual incidents which had occurred, involving the appellant putting his penis into the complainant's mouth. One such incident was alleged to have occurred interstate, when the appellant and his step-father (the complainant's step-grandfather) were visiting the complainant and his parents at their family home. The act of fellatio occurred in the garden of the home, against the rear fence, after the appellant had offered the complainant some chocolate bullets. 7. Another uncharged act of fellatio was said to have occurred at the appellant's home, in the kitchenette, at about the same time as count 3. The complainant told his uncle he did not like the taste when an act of fellatio occurred, upon which the appellant is said to have gone to one of his brothers, PS, to obtain (what the complainant later came to understand was) a condom. PS quizzed the complainant about his dislike of the taste. Back in the kitchenette, further fellatio took place, with the complainant remembering a disgusting rubbery taste. 8. There were other incidents, but the complainant could not recall when they occurred. The complainant was about 10 or 11 when the assaults stopped. 9. Although at the time of the alleged assaults the complainant had not understood that what had happened was wrong, as he got older, he came to appreciate this, and withdrew from his uncle's company. He tried to avoid visits to Sydney so that he did not have to see the appellant. 10. The complainant told no-one about these events until he was aged about 19, in around 1995. The disclosure, to his mother, occurred after an evening when the complainant had been drinking. Although he did not well remember the conversation, he thought that he told his mother that the appellant had abused him, and specifically referred to his uncle putting his penis into his mouth. He mentioned the incident involving PS and the condom. The complainant later discussed the matter with his step-father (the appellant's brother). He sought a solemn promise from his parents that neither would disclose the abuse to anyone, because he wanted to protect his step-grandparents (the appellant's parents). 11. In 2012 the complainant had cause to go to the area near his grandparents' (and the appellant's) home, in connection with his business. He became very emotional and told a co-worker that it was difficult for him to go to that part of Sydney as his uncle had abused him. He went with his co-worker to look at his grandparents' house from the street. 12. The complainant's grandfather had died in 1997. At around the time of his visit to Sydney with co-workers in 2012, his grandmother also died. After her death, the complainant decided to tell police about what had happened to him. 13. In cross-examination the appellant conceded having visited his grandparents' home on many occasions when he was growing up, including most Christmas holidays, with a number of visits during 1983 alone. He agreed that he had discussed the dates of various events with his parents prior to making his statement to police, and had looked at old photographs. He said that he could not remember how many times he had been assaulted by his uncle, and agreed that each incident was broadly similar to each other incident. He denied that he could have become mixed up about events, or that he had attributed events to timeframes only after referring to photographs. He denied that many of his memories were constructions. 14. He also denied that he was motivated to complain after learning of a disclosure of sexual abuse by the appellant from his cousin, BS. 15. The complainant's mother gave evidence confirming the complaint made to her, of sexual abuse by the appellant. She recalled her son talking about not having liked the taste, and referring to the incident involving PS providing the appellant with a condom. He was upset and crying when telling her about it. She confirmed that, as he got older, her son had resisted going to Sydney to visit her husband's family. 16. The complainant's step-father gave evidence that his brother, the appellant, was the youngest of his siblings, and had lived at the family home, using the bedroom with a kitchenette. He agreed, however, that the occupation of bedrooms changed from time to time, and his mother had occupied the room at one stage. He could not recall whether his brother PS was living at the family home in 1984 or 1985. He confirmed the frequency of the visits to his parents' home when the complainant was younger. The complainant's father said that he was aware that a complaint had been made by BS against the appellant, and discussed that with the complainant. He did not, however, discuss the detail of the allegation with him. 17. The complainant's co-worker was called to confirm evidence of the complaint made to him on the occasion when the complainant stood outside his grandparents' house. He said that the complainant was upset, with red watery eyes. He was trembling when he spoke of the abuse by his uncle. The co-worker was vague about when this incident occurred. 18. Pursuant to the earlier ruling by the trial judge admitting the evidence, the Crown called BS to give evidence going to a tendency the appellant was said to have, to have a sexual interest in young child relatives, and to act on that interest by sexually assaulting his relations. 19. BS told the jury that, when she was young, her mother had worked at Rozelle, and she had often been left at her grandparents' home to be cared for when her mother worked. At that time, she thought her uncle, DS, was the only one of her mother's siblings who still lived at the parental home. 20. BS described an occasion when the appellant led her into her grandparents' bedroom and, when the pair was on the bed under the blankets watching television, directed her to place her hand on his penis and rub it. The appellant had told BS that it was fun to play games. 21. She recalled another similar incident about two weeks later when the same thing occurred. After a time the appellant said they could go outside and she stopped. 22. BS thought there were other occasions when such activity took place but she could not be specific about them. She thought that the last incident happened when she was about 4 and a half years old. 23. She denied that there had only been one incident, but conceded that the occasions tended to blur together. She said that, although she had never discussed her allegations with the complainant, or those that he had made, she had decided to go to the police after becoming aware that her cousin intended to make a formal complaint. 24. BS's mother Ms W also gave evidence and the recording of the telephone conversation she had had with the appellant was played. 25. Ms W told the jury that when BS was small, she had worked for 4 hour shifts and BS was left with Ms W's parents for about 4 and a half hours on those days. 26. Another of the appellant's siblings was called, to give evidence concerning the uncharged "condom incident". The complainant alleged that, when he complained about the taste of DS's penis, DS had gone to PS to get a condom. PS denied that any such incident occurred. He denied that he had asked the complainant, "don't you like the taste". He confirmed that he had written a note at the request of his brother denying the suggestion he was involved as alleged, and had refused to make a statement to police. He said he was unaware of any complaint made by BS. 27. PS said that he thought he had used the attic as his bedroom for a time, and was in an upstairs bedroom in the nineteen eighties. In that decade he was in his twenties, and kept condoms in his bedside table. 28. Two police officers gave evidence but their evidence was not of great significance. There was no interview between police and the appellant. The Appellant's Case 1. The appellant did not give evidence. He called Anthony Carl, who had dated a family member of the appellant for three years, including at around the time of Nana Vic's 80th birthday party. Mr Carl recalled attending a family wedding with his then girlfriend at a hall at Sefton. He had acted the part of a clown for an earlier family function, a birthday party for BS, but at the wedding the appellant had used Mr Carl's clown costume. He recalled helping the appellant dress in the oversize bib and brace outfit, and in applying clown make-up. He could not recall the colour of the clown costume, or whether the appellant was dressed in it before or after the wedding ceremony took place. The Appeal Ground 1 – The Tendency Ground 1. By this ground, pleaded as three sub-grounds, the appellant complains about the decision of the trial judge to admit the evidence of BS and the related evidence of the telephone admissions made by DS to sexual activity with his niece, together with the directions given to the jury as to the use to be made of the evidence. 2. It is submitted that his Honour was in error in permitting the Crown to rely upon the appellant's acts as a 13 year old boy, in circumstances where the Crown had failed to rebut the doli incapax presumption with respect to criminal charges brought to reflect that conduct, as evidence of his tendency as a 15, 16 or 18 year old to intentionally commit a sexual assault. The appellant argues that, […] the unfair prejudice to [him] by the admission of BS's evidence was manifest and extreme, particularly as such evidence was effectively elevated to bear a characterisation of a prior "sexual assault". 1. In so saying, the appellant relies upon the instructions given to the jury by his Honour in which the conduct alleged by BS was referred to repeatedly as "sexual assault". 2. The Crown argues that the fact that the appellant was acquitted in the Local Court of the charges relevant to BS did not pose a barrier to the admissibility of the evidence as evidence proving a particular tendency. Referring to the "principle of incontrovertibility" the Crown submits that because the tender of the evidence did not tend to call into question the earlier acquittals, its use was permissible. Support for that proposition is said to be found in The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55 , at [50]; and Gilham v R 178 A Crim R 72; [2012] NSWCCA 131. 3. This was so, it is argued, because the Crown focused on the evidence relevant to BS only to go to the actus reus of the conduct, and not the question of criminal intent. 4. In considering the competing arguments, it is necessary to be clear as to the nature of the tendency the Crown set out to prove, and the nature of the tendency the jury was directed to consider. 5. The tendency notice served by the Crown gave notice of an intention to adduce evidence from BS and Ms W to go to the appellant's: 1. tendency to have a sexual interest in child relatives aged under 10 (being a state of mind); and 2. tendency to act on that interest, being a tendency to "sexually assault young child relatives under the age of 10 years to whom he is their uncle between the years 1980 and 1986". 1. Evidence of the character, reputation, or conduct of a person, or a tendency that the person has is not admissible, unless those things referred to in s 97(1) of the Evidence Act are satisfied. Section 97(1) provides, 97 The tendency rule (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 state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, 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. 1. Section 101(2) provides a further barrier to the admissibility of tendency evidence: 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. 1. In determining that the evidence relating to BS was admissible as tendency evidence, the trial judge had regard to each of those statutory provisions. He concluded that the statutory tests for admissibility were met. That was in part because, as he said in his judgment of 21 November 2016: The Crown does not wish to put the tendency evidence before the jury on the basis that it tends to suggest that what the accused did was known by him to be wrong. If that was the Crown's approach then the evidence would be immediately rejected, but as I began this judgment the Crown wishes to put the evidence before the jury to prove, inter alia, a particular state of mind, that is to have a sexual interest in young children, relatives, under the age of ten years. A person can have a sexual interest in another person without knowing that acting upon that interest in a sexual way is seriously wrong. 1. In my view, his Honour was correct in so holding: it is possible for a person to have a sexual interest in a child, and to act on that interest, without understanding the wrongfulness of the conduct. Evidence of that nature would, as the trial judge concluded, have significant probative value concerning the principal fact in issue in the trial, being whether the appellant engaged with his young nephew sexually, as charged. Its probative value was sufficiently high as to outweigh the potential prejudicial effect upon the appellant. 2. However, during the course of the trial, in the way the Crown case was conducted, and as the Crown case was left to the jury, the tendency the Crown argued for, and about which the jury was directed, was the appellant's tendency to engage in sexual misconduct with, or to sexually assault, young relatives. 3. Approaching the evidence of BS and the evidence connected with her allegations in that way did, in my conclusion, lead to error. The evidence of what had happened to BS was not available as evidence of a tendency to sexually assault young relatives. It could never have been probative of such a tendency, in light of the determination of the Local Court when charges connected with those events were put before it. 4. In her closing address to the jury, the Crown Prosecutor referred to BS's evidence as establishing a "tendency to engage in sexual misconduct as an uncle with his niece". She referred on a number of occasions in address to the appellant's conduct with BS as "the offending". 5. In the course of directing the jury about the way in which the tendency evidence could be used, the trial judge referred to the tendency the Crown sought to prove as "a tendency to sexually assault young relatives of his", a tendency based upon the evidence of BS. His Honour summarised the relevant evidence as that of BS of two, and possibly more, incidents when she was instructed by the appellant to fondle his penis; evidence from a police officer that the appellant had not disputed commission of those acts when prosecuted; and evidence of the appellant's admissions made in the telephone call to Ms W to playing doctors and nurses. 6. His Honour went on to give a direction in standard terms of the things of which the jury had to be satisfied before the particularised evidence could be used as evidence of the appellant's "tendency to sexually assault young relatives". Having given the direction, by way of summary his Honour said, "So you firstly decide [...] beyond reasonable doubt what the accused did, if anything, with [BS]. And secondly, looking only at those acts you have found proved beyond reasonable doubt, you decide whether the evidence demonstrates beyond reasonable doubt that the accused had a tendency to sexually assault his young relatives". 1. All of this tended to overshadow what in my view was the permissible use of the evidence connected with BS's allegations, that being to go to the appellant's tendency to have a sexual interest in the young children of his siblings, and a tendency to act upon that sexual interest. 2. To repeatedly describe the acts perpetrated against BS as "offending conduct", "sexual misconduct", or – even more prejudicially – "sexual assault" could only have led the jury to misuse the evidence. 3. The phrase "sexual assault" conjures up, to the lawyer as well as to the lay person, a sexual crime. Although there was evidence that the appellant had caused BS to engage in sexual acts with him, the evidence was that the Crown had, in a separate prosecution, failed to establish that his conduct amounted to a crime. 4. Inherent in the notion of a sexual assault is both the actus reus – the physical act that constitutes the crime, and the mens rea – the knowledge of wrongdoing or "guilty mind" that constitutes the mental aspect of the commission of crime. In engaging sexually with his young niece as a 13 year old boy, the common law presumed, and the Crown failed to rebut, that the appellant had acted without the knowledge that his conduct was seriously wrong in a moral sense. 5. That being the case, the evidence of BS, even supported as it was by the evidence of the telephone conversation with Ms W and the evidence that the appellant did not deny commission of at least one act of the type of which BS complained, could never establish a "tendency to sexually assault young relatives of his". 6. The jury was warned by the trial judge more than once that the evidence associated with the allegations made by BS could only be used in the way that had been explained. A direction was also given that "it would be wrong to conclude that, because [the appellant] did something to [BS] which was inappropriate or even more seriously wrong, he is therefore a person of bad character and for that reason must have committed the offences charged". However, warnings of this nature could not overcome the prejudice occasioned by allowing the evidence of BS to go to the jury as evidence of a tendency of the appellant to sexually assault his young relatives. 7. Tendency evidence carries with it, by its very nature, a risk of prejudice to an accused person. Because of that risk it is important to be careful about the language used to describe the tendency argued for, and the way in which the evidence is to be used. Here, the evidence connected with the appellant's conduct towards BS was capable of supporting a conclusion that he had a tendency to have a sexual interest in young children of his siblings, and a tendency to engage in sexual acts with them, but it could not support the existence of a tendency "to sexually assault young relatives". 8. The difference is more than semantic: the evidence of acts done without knowledge of their moral wrongness could not establish a tendency to commit serious criminal acts, knowing them to be such. For the evidence to be led for that purpose gave rise to impermissible prejudice. 9. The Crown argued that the incontrovertibility principle had not been breached but that submission cannot be accepted. To permit the Crown to rely upon the evidence of BS as evidence which established a tendency to sexually assault young relatives, did traverse those aspects of the incontrovertibility principle that reflect the importance of finality of court verdicts, and the notion of the inherent unfairness involved in bringing a further accusation with respect to conduct of which an accused person has been acquitted (other than in those rare cases where it is permitted by statute). 10. The Crown also relied upon the decision of this Court in BC v R [2015] NSWCCA 327 to argue for the correctness of the nature of the use of the evidence of BS, but the decision does not aid the Crown. In BC v R there were 20 counts before the jury which covered a period of time in which the accused person was aged between 11 years and 28 years old. During the time period covered by counts 1 to 3 the applicant was aged 11 to 13 years old. Whether the Crown had rebutted the doli incapax presumption for those counts was one of the matters that the jury hearing the trial had to determine. Further, the tendencies sought to be proved (from the conduct alleged with respect to each count, going to each other count) were confined to tendencies to have a sexual interest in children of a particular age range, to act on that sexual interest, and to abuse a position of trust to facilitate the commission of the acts. 11. Had that approach been taken in this matter, there would have been no error in my opinion. 12. It follows from what I have concluded as to the use made of the evidence of BS that the evidence of Ms W of the telephone conversation between her and the appellant could have been led to go to proof of the appellant's tendencies to be sexually interested in young children of his siblings, and to engage sexually with them, but it was inadmissible as evidence of a tendency to sexually assault those children. 13. Ground 1 must be upheld. Necessarily, the conviction with respect to count 3 must be quashed. The question of whether the matter is again brought to trial is a matter for the Director of Public Prosecutions. Ground 2 1. Having regard to the determination of ground 1, it is not strictly necessary to consider this ground, particularly as I have concluded that there was unfair prejudice to the appellant in the way the Crown case was left to the jury. Necessarily, that affected the determination of this count. However, insofar as it may be relevant to consideration of any retrial, and setting aside for the moment the possible effect of the tendency evidence as it was left to the jury, it is apposite to record my conclusion as to this ground, a ground which I would grant leave to advance, but dismiss. 2. The appellant contends that the verdict with respect to count 3 is unreasonable, an unreasonableness highlighted by the failure of the jury to reach verdicts with respect to counts 1 and 2. 3. The focus of his argument is in pointing to what are said to be inconsistencies in the complainant's account of relevant events, inconsistencies which may be concluded to underlie the failure of the jury to determine verdicts for the remaining counts. 4. Inconsistencies in the evidence of a witness recalling events from many years before are not unexpected or unusual. Nor do they dictate that a jury accepting part or all of such a witness' evidence must have acted unreasonably. I do not regard such inconsistencies as exist with respect to count 3 to be so significant as to conclude that the verdict reached by the jury was an unreasonable one. In my view it was open on the evidence. 5. That the jurors could not agree on verdicts for counts 1 and 2 does not suggest that, necessarily, the complainant was regarded as unreliable. As was said in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, at [34] (where there were verdicts of not guilty for some counts, as opposed to a failure to agree), "In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence." 1. In the circumstances of this trial there were features which distinguished proof of the three counts that are capable of rationally explaining the differing outcomes. 2. Because of the statutory regime that applied in 1983 for sexual offences, count 1 required proof of a lack of the complainant's consent, and the appellant's knowledge of his lack of consent. There was no direct evidence to go to this aspect of the matter, only what could be inferred from the complainant's and appellant's respective ages, and from the overall circumstances of the alleged offending. Disagreement as to the inference to be drawn could have reasonably arisen. 3. Count 2 alleged conduct that was identical to that which was alleged with respect to count 1, and which was said to have occurred at the same location (the community hall in Sefton), in very similar circumstances, being the occasion of family celebrations. The thrust of much of the cross-examination with respect to this count was to suggest to the complainant that he was confused between the two occasions, and unable to distinguish them. 4. It may be that some jurors, without rejecting the complainant's account of having been sexually assaulted by the appellant, were concerned about the possibility for confusion between the events the subject of count 1 and count 2, or between those events and other family functions held at other times at Sefton Hall. If there was such concern, the issue of proof of the absence of consent and knowledge of lack of consent would also be added to the mix of considerations for the jury. Reasonable minds could differ as to the resolution of those considerations. 5. The appellant has failed to establish that the verdict returned against ground 3 was unreasonable due to the unreliability of the complainant's evidence, or that his unreliability must have been the basis for the failure of the jurors to agree verdicts for counts 1 and 2. The Sentence appeal 1. In light of my conclusions with respect to ground 1, it is not necessary to consider this ground. Proposed orders 1. The result is that the conviction and sentence should be quashed. It will be for the prosecutor to determine whether to conduct a retrial. To allow the charges to be determined the matter should be remitted to the District Court. 2. The orders I propose are: 1. Appeal against conviction is upheld. 2. Conviction and sentence are quashed. 3. Matter is remitted to the District Court. 1. LONERGAN J: I agree with the judgment of Wilson J and the proposed orders and the additional observations of Basten JA. ********** Endnotes 1. The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55 at [45] (Gleeson CJ and Hayne J); [93] (Gaudron and Gummow JJ); [137] (McHugh J). 2. RP v The Queen (2016) 259 CLR 641; [2016] HCA 53 at [8] (Kiefel, Bell, Keane and Gordon JJ). 3. Regina v Z [2000] 2 AC 483; Carroll at [50] (Gleeson CJ and Hayne J). 4. (2016) 257 CLR 300; [2016] HCA 14 at [104]. 5. Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206 at [253], [360] (Bathurst CJ; Hoeben CJ at CL; Simpson J). Amendments 10 September 2018 - Coversheet typo in "Before" field amended. 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: 10 September 2018