RH v R

Citation: RH v R [2014] NSWCCA 71
Court: Court of Criminal Appeal
Date: 09 May 2014
Judge(s): Ward JA (principal judgment); Harrison J and RA Hulme J (agreeing)

Background

The appellant was a foster carer who, together with his wife, had fostered dozens of children over many years. Three of those children, referred to in the judgment as Jane, Kay, and Lisa, were at the centre of the proceedings. The appellant had previously pleaded guilty to five counts of aggravated indecent assault against Lisa, committed between 2005 and 2006 when she was aged 11 to 12.

At trial before Lakatos DCJ, the appellant faced seven counts on the indictment. Six related to sexual offending against Jane between 1989 and 1993, when she was aged approximately 9 to 14. The seventh was an aggravated indecent assault against Kay in 2003, when she was aged 12 to 13. The appellant was found guilty on five of the six counts involving Jane and on the single count involving Kay. He was acquitted on the sixth count relating to Jane (alleged conduct at a beach), and the jury was discharged without a verdict on that count.

The Crown relied on the evidence of all three complainants as tendency evidence. The admissions arising from the appellant's guilty plea regarding Lisa were placed before the jury by way of an agreed statement of facts. The appellant appealed his convictions on the grounds that the tendency evidence had been wrongly admitted and that the verdicts were unreasonable.

Legal Issues

• Whether the tendency evidence of each complainant was properly admitted, having regard to the temporal gaps between the alleged offences, the differences in the nature of the conduct alleged, and the prejudicial effect of the appellant's prior guilty plea regarding Lisa
• Whether there was a real risk of contamination or concoction of Kay's evidence through her communications with Lisa
• Whether the two earlier uncharged incidents described by Kay had sufficient probative value to be admitted as tendency evidence
• Whether the verdicts on counts 1 to 5 (relating to Jane) and count 7 (relating to Kay) were unreasonable or could not be supported by the evidence

Decision

Grounds 1, 3, 4, and 5: Tendency evidence and temporal gaps

Ward JA held that the temporal gaps between the offences did not fatally undermine the probative value of the tendency evidence. The gaps were explicable by reference to the sequential ages of the complainants and their placement in the appellant's care: there was no girl in the relevant age range in the household during much of the period between the offences against Jane and those against Kay. This distinguished the case from authorities such as R v Thomas Douglas Watkins [2005] NSWCCA 164, where a 15-year gap without asserted misconduct was a significant factor. The Crown's case was that the appellant's tendency was specifically to sexually exploit vulnerable young girls in his foster care within a particular developmental age range, and the temporal gaps were, on that analysis, an integral part of the pattern rather than a weakness in it.

The later admitted conduct against Lisa was capable of supporting an inference that the appellant had a relevant tendency operating two to three years earlier (when the Kay count occurred), and the jury was properly directed that it must be satisfied beyond reasonable doubt of any tendency before relying upon it. Ward JA accepted that the weight of subsequent tendency evidence is generally less than prior tendency evidence, consistent with R v Beserick (1993) 30 NSWLR 510, but concluded that the evidence against Lisa did not suffer from the vagueness or implausibility identified in R v Dann [2000] NSWCCA 185, nor the factual dissimilarity or lengthy unimpeached intervening period in Watkins.

Ground 4 (contamination): Risk of concoction in Kay's evidence

The Court rejected the submission that Kay's evidence was tainted by contamination arising from her communications with Lisa. Both Kay and Lisa denied exchanging specific detail about the conduct each had experienced. The differences between their accounts (Kay describing vaginal touching; Lisa describing breast touching and oral contact) told against, rather than in favour of, contamination. The inconsistencies in the evidence about the sequence of disclosures between Kay and Lisa on the day in 2006 were examined at length and found not to demonstrate a real risk of concoction. Finnane DCJ's conclusion on the voir dire that there was no real chance of contamination was upheld.

Ground 6: Earlier uncharged incidents involving Kay

The Court held that the two earlier uncharged incidents described by Kay had sufficient probative value to be relied upon as tendency evidence, even though there was some uncertainty about the precise timing of those incidents by reference to hospital records and bedroom occupancy. The uncertainty did not compel a conclusion that the incidents had not occurred; it was more likely explicable by a mistake in Kay's recollection of timing, which did not necessarily undermine the occurrence of the conduct itself.

Prejudicial effect of the guilty plea

The Court found that the appellant's guilty plea regarding Lisa did not produce prejudice so severe as to substantially outweigh the probative value of that evidence. The Crown's use of the plea at trial was directed to the appellant's credibility when he denied having a sexual interest in children, not to invite the jury to convict him simply because he had previously pleaded guilty. The differences between the three sets of allegations and the temporal gaps between them also meant the guilty plea did not overwhelm the jury's ability to assess the tendency evidence independently.

Grounds 7 and 8: Unreasonable verdicts

Applying the test in M v The Queen (1994) 181 CLR 487 and SKA v The Queen (2011) 243 CLR 400, the Court conducted an independent assessment of the evidence. Ward JA found it was reasonably open to the jury to accept Jane's evidence on counts 1 to 5, notwithstanding the inconsistencies in her account of her age and the circumstances of each incident. Her confusion in cross-examination was understandable given the complexity and sensitivity of the questioning, and the jury had the advantage of observing her evidence. The Court also found the verdict on count 7 open to the jury, noting that the appellant's explanation for the Kay incident (inadvertent contact while retrieving a cat) was inconsistent with Dr Rewais's contemporaneous clinical notes and his observations that Kay was under considerable pressure to minimise the incident.

The appellant's own evidence significantly undermined his credibility. He resiled from the agreed facts of his guilty plea during cross-examination, at points suggesting the conduct described had not occurred or that he could not recall it, despite having signed the agreed statement. His wife's evidence was similarly marked by implausible lapses of memory and a consistent refusal to accept the seriousness of the conduct to which her husband had pleaded guilty. Both the 2003 DOCS consultation process and the 2007 family meeting supported the complainants' accounts and were inconsistent with the version presented by the appellant and his wife.

Orders Made

• Appeal dismissed

Key Takeaways

• Temporal gaps between sexual offences alleged over a long period do not necessarily diminish the probative value of tendency evidence, particularly where the gaps are explicable by reference to the sequential placement of complainants in the accused's care and the accused's apparent pattern of offending against children within a particular developmental age range.
• Subsequent sexual conduct (occurring after the charged offences) can be admitted as tendency evidence, though it generally carries less weight than prior conduct; the critical inquiry is whether its probative value, assessed in context, substantially outweighs its prejudicial effect under the uniform evidence law framework.
• Opportunity for complainants to communicate does not of itself establish a real risk of contamination or concoction; courts will examine the actual content of disclosures, the differences between accounts, and the circumstances of any inter-complainant communications before concluding that probative value is materially reduced.
• Where an accused resiles in the witness box from admissions made in a prior guilty plea, particularly by suggesting the agreed facts did not accurately reflect what occurred, this conduct is likely to damage credibility significantly and may itself support the broader prosecution case.
• In assessing an unreasonable verdict ground under s 6(1) of the Criminal Appeal Act 1912 (NSW), an appellate court conducts an independent assessment of the sufficiency and quality of the evidence, but recognises the advantages the jury held in observing witnesses, particularly where inconsistencies in cross-examination are explicable by stress, confusion, or the complexity of questioning rather than dishonesty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Criminal Appeal Act 1912
- Evidence Act 1995

Cases
- BP v R; R v BP [2010] NSWCCA 303
- DJV v R [2008] NSWCA 272; (2008) 200 A Crim R 206
- Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254
- Hoch v The Queen [1998] HCA 50;(1988) 165 CLR 292
- HML v R [2008] HCA 16; (2008) 235 CLR 334
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Pfennig v R [1995] HCA 7; (1995) 182 CLR 461
- R v AH (1997) 42 NSWLR 702; (1997) 98 A Crim R 71
- R v Beserick (1993) 30 NSWLR 510
- R v Dann [2000] NSWCCA 185
- R v Fung [2002] NSWCCA 479; 136 A Crim R 95
- R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75
- R v SK; SK v R [2011] NSWCCA 292
- R v Thomas Douglas Watkins [2005] NSWCCA 164
- Simpson v Robinson (1848) 12 QB 511; 116 ER 959
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
- TWL v R [2012] NSWCCA 57