AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 24 June 2015

Leighton v R

[2015] NSWCCA 156

Sexual offences
CRIMINAL LAW APPEAL S5F CRIMINAL APPEAL ACT 1912 RELEVANCE PROBATIVE VALUE WHETHER DENIAL OF PROCEDURAL FAIRNESS

Citation: Leighton v R [2015] NSWCCA 156
Court: Court of Criminal Appeal, New South Wales
Date: 24 June 2015
Judges: Hoeben CJ at CL, Adams J, Wilson J

Background

The appellant, a former dentist who practised in Sydney's southern suburbs, faced 27 charges of sexual assault offences arising from allegations made by nine complainants. The complainants were girls and young women who attended his dental surgery between 1973 and 1984, ranging in age from approximately 9 to 34 years at the relevant times. The charges included multiple counts of indecent assault under the Crimes Act 1900 and two counts of sexual intercourse without consent with a child under 16.

A central feature of the prosecution case was that the alleged assaults occurred when the appellant administered nitrous oxide (N2O) to complainants during dental treatment. The prosecution sought to adduce tendency and coincidence evidence from a larger group of witnesses whose experiences followed a similar pattern. The appellant challenged the admissibility of that evidence in the District Court.

The trial judge (Woods QC DCJ) ruled the tendency and coincidence evidence admissible. He certified the interlocutory ruling as appropriate for appeal under s 5F(3)(b) of the Criminal Appeal Act 1912, limiting the certificate to issues concerning the effects of nitrous oxide. The appellant also sought leave to appeal on additional grounds.

  • Whether the tendency and coincidence evidence had sufficient probative value to be admissible under the Evidence Act 1995 (NSW), particularly given that the alleged assaults occurred during nitrous oxide sedation
  • Whether the effects of nitrous oxide could render the complainants' recollections of sexual touching unreliable or confabulated, undermining the probative value of the evidence
  • Whether the trial judge denied the appellant procedural fairness
  • Whether the trial judge properly considered the possibility that witness evidence had been contaminated by collusion, publicity, or the physiological effects of nitrous oxide

Decision

The Court of Criminal Appeal dismissed the appeal and refused leave on the additional grounds challenged. Wilson J, with whom Hoeben CJ at CL agreed, found no error in the trial judge's approach to admissibility. The primary judge had carefully and thoroughly considered the potential impact of nitrous oxide intoxication on witness reliability, and correctly concluded that nothing in the evidence compelled a finding that the complainants' accounts were necessarily products of fantasy rather than genuine recollection.

Adams J agreed with Wilson J's conclusions and added observations of his own. His Honour identified the core tendency as the appellant touching female patients in a sexual manner while they were sedated with nitrous oxide, and noted that it was not necessary to establish that the impugned conduct occurred on every occasion that the opportunity arose. The question of whether alleged tendency evidence has sufficient probative weight is one of fact and degree on the particular evidence.

On the coincidence evidence, Adams J reasoned that the multiplicity of similar complaints from patients with no apparent links to one another, many of whom had disclosed their experiences to family members well before any media publicity, made joint concoction an unrealistic explanation. The remaining inference available was that the complainants' accounts were truthful and reliable, and that the events in fact occurred. That analysis drew on the principle stated in Pfennig v The Queen that the probative value of such evidence lies in the improbability of multiple witnesses giving similar accounts unless the events actually occurred.

Adams J also raised, for completeness, an observation that if nitrous oxide sedation could in principle cause a patient to imagine sexual interference, it might remain theoretically possible that one particular charge (even if not all charges) was explained in that way. His Honour emphasised that this would require careful separate consideration of each charge at trial, though he noted the point significantly oversimplified the individual evidence relating to each incident.

Orders Made

  • Leave to appeal on grounds 7, 9, 10, and 12 refused
  • Appeal dismissed
  • The questions posed by the primary judge answered: No; Yes; Yes

Key Takeaways

  • Tendency evidence does not require proof that the impugned conduct occurred on every occasion an opportunity arose; sufficiency of probative value is a question of fact and degree on the particular evidence in each case.
  • Under s 98 of the Evidence Act 1995 (NSW), coincidence evidence may be admissible where the improbability of multiple complainants giving similar accounts independently makes it unlikely those accounts are false, particularly where concoction or collusion can be ruled out.
  • The probative weight of tendency and coincidence evidence is capable of being heightened where an alternative explanation for the complainants' accounts (here, nitrous oxide-induced confabulation) is itself in issue at trial.
  • No error was established in the trial judge's approach to contamination, collusion, and the effects of nitrous oxide, as the primary judge had carefully assessed each of those matters and excluded evidence in the one instance where contamination could not be dismissed.
  • An interlocutory ruling on admissibility of tendency and coincidence evidence is amenable to appeal under s 5F of the Criminal Appeal Act 1912, either by certificate of the trial judge or with leave of the Court of Criminal Appeal, but appellants must identify a specific House v The King error to succeed on discretionary grounds.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), ss 97, 98

Cases:
- DSJ v R [2012] NSWCCA 9
- Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606
- House v The King (1936) 55 CLR 499
- Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
- Pfennig v The Queen [1995] HCA 7; 182 CLR 461
- R v BWM (1997) 91 A Crim R 260
- R v Davis [2004] NSWCCA 298
- R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227
- R v Le [2000] NSWCCA 49
- Regina v Folbigg [2005] NSWCCA 23; 152 A Crim R 35
- TS v R [2014] NSWCCA 174
- Versi v R [2013] NSWCCA 206