Fletcher v R

Citation: R v Fletcher [2005] NSWCCA 338
Court: Court of Criminal Appeal
Date: 23 September 2005
Judge(s): McClellan CJ at CL, Simpson J, Rothman J (dissenting)

Background

A former Catholic parish priest was convicted in the District Court of nine sexual offences against a male complainant committed in 1990 and 1991. The complainant was aged 13 to 15 during the relevant period. The offences included acts of fellatio and anal intercourse. The appellant had developed a close relationship with the complainant's family through his role as parish priest, and the complainant had served as an altar boy in the parish.

Before trial, the prosecution gave notice of its intention to adduce tendency evidence under section 97 of the Evidence Act 1995. That evidence came principally from a witness (GG), also a former altar boy, who described two incidents in 1986 and 1987 in which the appellant had performed fellatio upon him while he was staying overnight at the presbytery. GG was approximately 13 years old at the time of those incidents.

The trial judge admitted the two GG incidents as tendency evidence but rejected a substantial quantity of other proposed tendency and coincidence evidence. The appellant was convicted on all nine counts and appealed to the Court of Criminal Appeal.

Legal Issues

• Whether the trial judge erred in law by admitting GG's evidence as tendency evidence under section 97 of the Evidence Act 1995.
• Whether that evidence had significant probative value within the meaning of section 97(1)(b).
• Whether the probative value of the evidence substantially outweighed its prejudicial effect on the appellant, as required by section 101(2).
• Whether the trial judge erred in directing the jury that GG's evidence could be used as tendency evidence in relation to all nine charges, rather than being confined to Count 4.
• Whether the admission of the evidence, and the directions given, resulted in a miscarriage of justice.

Decision

The majority (McClellan CJ at CL and Simpson J) dismissed the appeal. Rothman J dissented and would have allowed the appeal, quashed the conviction, and ordered a new trial.

Ground 1(a): Whether GG's evidence was tendency evidence within section 97

Simpson J, writing the majority judgment, held that the admitted portions of GG's statement were capable of establishing a pattern of behaviour by the appellant. This included using his position as parish priest to befriend Catholic families with young sons, developing a close relationship with a particular boy, introducing that boy to sexually explicit material, and ultimately engaging in sexual conduct. Simpson J found that GG and the complainant were of similar ages at the time of the relevant conduct, both served as altar boys, both described conversations of a sexual nature, and both recounted being told by the appellant to keep what had occurred secret. Those shared features were sufficient for the evidence to qualify as tendency evidence, even though the precise sexual acts described by GG differed from most of those alleged by the complainant.

Ground 1(b): Significant probative value

The majority held that the trial judge was entitled to conclude that the evidence had significant probative value when assessed against all the material before him at the time of the ruling. The relevant assessment for appellate review was the material available to the trial judge on the voir dire, not the evidence as ultimately given at trial. The majority found that no error of the kind identified in House v The King was demonstrated in the judge's conclusion that the jury would ascribe significant probative value to GG's evidence.

Ground 1(c): Section 101(2) balancing

Simpson J acknowledged that the evidence was significantly prejudicial, but held it was open to the trial judge to conclude that the probative value substantially outweighed the prejudicial effect. The contextual similarities, including the matching family relationships and church involvement, contributed to that probative weight. No error of law was identified in the judge's determination on this point.

Ground 1(d): Whether a miscarriage of justice resulted

The majority distinguished between an error in the original admissibility ruling and a miscarriage of justice that might emerge from the evidence's impact at trial. Simpson J held that neither had occurred. The majority noted that experienced senior counsel represented the appellant throughout and had not sought admission of any ameliorating material from the rejected tendency evidence. No submission was advanced that the selective admission of only part of the proposed tendency material had adversely affected the fairness of the trial.

Ground 2: Directions on use of the evidence across all counts

Because the majority concluded that GG's evidence was properly admissible in relation to all counts, the challenge to the jury directions on that basis could not succeed.

Rothman J (dissenting)

Rothman J took a different analytical approach. His Honour emphasised that the central issue at trial was not the identity of the perpetrator but whether any criminal conduct had occurred at all. In those circumstances, tendency evidence has substantially less work to do. The GG incidents differed from most of the charged conduct in their private circumstances and in the nature of the sexual acts alleged. The degree to which the GG evidence could rationally affect the probability of the charged conduct was, in his Honour's view, insufficient to satisfy the section 97 threshold or the section 101(2) balancing test. Rothman J also reasoned that the evidence was being used in a way more analogous to coincidence evidence under section 98, but did not satisfy the statutory requirements for that category either. His Honour concluded that the jury had been permitted to use the evidence in an impermissible manner, constituting a miscarriage of justice requiring a new trial.

Orders Made

By majority (McClellan CJ at CL and Simpson J, Rothman J dissenting):

• Appeal dismissed.

(Rothman J proposed, in dissent, that the appeal be allowed, the conviction be quashed, and a new trial be ordered.)

Key Takeaways

• A decision to admit tendency evidence under section 97 of the Evidence Act 1995 involves an evaluative and predictive judgment, not a scientific determination, and reasonable minds may reach different conclusions on the same material. That decision is reviewable on appeal only on the principles in House v The King, not by substituting the appellate court's own assessment.

• When assessing whether a trial judge's admissibility ruling was erroneous, the appellate court looks to the material before the trial judge at the time of the ruling, not to the evidence as it was ultimately given at trial. An appellate challenge based on the evidence actually led at trial is more appropriately framed as a miscarriage of justice ground, not as a wrong decision on a question of law.

• The "tendency" the prosecution seeks to establish under section 97 may go beyond a simple propensity for a particular sexual act. A pattern of behaviour, including the manner in which the accused cultivated relationships with victims and groomed them, can form the basis for the relevant tendency.

• Rothman J, in dissent, reasoned that where the principal issue is whether criminal conduct occurred at all (rather than who committed proven conduct), tendency evidence is less likely to satisfy the section 97 threshold or the section 101(2) requirement that probative value substantially outweigh prejudicial effect. This analysis reflects a distinction in how the admissibility tests operate depending on the nature of the facts genuinely in issue.

• Pre-Evidence Act common law authorities on similar fact and propensity evidence, including Hoch v The Queen and Pfennig v The Queen, remain relevant as guides to the evaluative process under sections 97 and 101, even though they no longer govern admissibility directly following the enactment of the uniform evidence legislation.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated