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Court of Criminal Appeal 1 December 2014

Jones v R

[2014] NSWCCA 280

Sexual offences
CRIMINAL LAW EVIDENCE TENDENCY EVIDENCE EVIDENCE TENDENCY EVIDENCE EVIDENCE

Citation: Jones v R [2014] NSWCCA 280
Court: NSW Court of Criminal Appeal
Date: 1 December 2014
Judge(s): Gleeson JA, Schmidt J, Bellew J (Bellew J writing)

Background

The applicant faced ten counts of aggravated indecent assault under s 61M(2) of the Crimes Act 1900 (NSW). The three complainants were brothers, and the alleged offending occurred while the applicant was in a relationship with their mother. The applicant was described as a father figure to the boys during the relevant period, and the alleged assaults each involved entering the boys' bedrooms at night and touching their genitalia.

The allegations came to light in December 2012 at a family barbecue, when the eldest brother spontaneously disclosed the conduct. The mother then asked the other two brothers open-ended questions, and they confirmed similar experiences. Police were contacted two days later, and statements were taken shortly after.

The Crown issued three tendency notices under s 97 of the Evidence Act 1995 (NSW), seeking to use the evidence of each victim as tendency evidence in relation to the charges involving the other victims. The primary judge (Blackmore SC DCJ) admitted the tendency evidence and declined to order separate trials. The applicant sought leave to appeal those rulings to the Court of Criminal Appeal.

  • Whether the primary judge's finding that there was no evidence of concoction or contamination was open on the evidence
  • Whether common law principles (including the approach in Hoch v The Queen) remained relevant in determining the admissibility of tendency evidence under the Evidence Act 1995
  • Whether concoction or contamination were matters going to reliability and credibility, and thus relevant to the probative value of the tendency evidence
  • Whether leave to appeal should be granted on all four grounds raised by the applicant

Decision

On the first three issues, the Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Bellew J (with whom Gleeson JA and Schmidt J agreed) found no factual error in the primary judge's conclusion that the evidence did not support a finding of concoction or contamination.

The Court examined the circumstances of the disclosures carefully. The eldest brother's complaint was spontaneous. The subsequent disclosures by the other two brothers followed open-ended questions from their mother, not leading ones. There was no evidence of prior discussions between the brothers, no evidence of communications between them in the period before their formal statements were taken, and no suggestion of any motive or opportunity to fabricate.

Critically, defence counsel at trial did not put to any of the three complainants that their evidence was concocted or contaminated, nor suggest any motive or opportunity for them to have done so. The Court noted that no reason had been put to the eldest brother suggesting a motive to concoct, and observed that the same could be said of the other two complainants. The mere existence of a relationship between the complainants and between each of them and the applicant did not, without more, support a finding of concoction or contamination.

On the fourth issue, leave to appeal was refused without elaboration in the published reasons.

Orders Made

  • Leave to appeal on the fourth issue: refused
  • Leave to appeal on the first, second, and third issues: granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the mere existence of a relationship between co-complainants does not, of itself, establish a real possibility of concoction or contamination for the purposes of tendency evidence admissibility.
  • Where a tendency is alleged, the probative value of the evidence must be assessed in light of the actual evidence before the court. Concoction and contamination are relevant considerations, but only where the evidence gives them real foundation.
  • No factual error was established in the primary judge's assessment that the disclosures, made spontaneously or in response to open-ended questioning, did not suggest contamination or collusion between the complainants.
  • A failure by defence counsel at trial to put concoction or contamination to the complainants in cross-examination was a significant factor in the Court's conclusion that no such finding was available on the evidence.
  • In dismissing the appeal, the Court applied established principles from cases including DAO v R, DSJ v R, and R v XY, reinforcing the framework for assessing tendency evidence under the Evidence Act 1995 in multi-complainant sexual assault trials.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 97, 101
- Court Suppression and Non-publication Orders Act 2012 (NSW)

Cases
- AE v R [2008] NSWCCA 52
- BJS v R [2011] NSWCCA 239
- BJS v R [2013] NSWCCA 123
- BP v R; R v BP [2010] NSWCCA 303
- DAO v R [2011] NSWCCA 63; (2011) 81 NSWLR 568
- Director of Public Prosecutions v Boardman [1975] AC 421
- DSJ v R; NS v R [2012] NSWCCA 9; (2012) 84 NSWLR 758
- FB v R; R v FB [2011] NSWCCA 217
- Hoch v The Queen [1988] HCA 57; (1988) 165 CLR 292
- Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
- R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700
- R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
- R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363
- Saoud v R [2014] NSWCCA 136