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7
Court of Criminal Appeal 18 May 2016

R v Gregory-Roberts

[2016] NSWCCA 92

Sexual offences
CRIMINAL LAW CROWN APPEAL S 5F(3A) CRIMINAL APPEAL ACT 1912 (NSW) EVIDENCE APPEAL UPHELD RULINGS SET ASIDE

Citation: R v Gregory-Roberts [2016] NSWCCA 92
Court: NSW Court of Criminal Appeal
Date: 18 May 2016
Judges: McCallum J, R A Hulme J, Schmidt J (unanimous)

Background

The respondent, an ophthalmologist, faced six counts of indecent assault alleged to have been committed at his rooms in Bondi between April 1981 and March 1982. The complainant was 11 years old at the time. The alleged offending included kissing, photographing the complainant in underpants, and acts of a sexual nature involving masturbation and oral contact.

At trial in the District Court, the trial judge ruled on a voir dire (a preliminary hearing to determine admissibility) that complaint evidence from three witnesses was inadmissible under s 66 of the Evidence Act 1995 (NSW), and that evidence of four pretext telephone calls, in which the Crown alleged the respondent made admissions, was also inadmissible. The exclusions significantly weakened the Crown case.

The Crown appealed those rulings under s 5F(3A) of the Criminal Appeal Act 1912 (NSW), which permits such an appeal where a ruling on admissibility eliminates or substantially weakens the prosecution's case.

  • Whether the Court of Criminal Appeal had jurisdiction under s 5F(3A) of the Criminal Appeal Act 1912 (NSW), including whether the cumulative effect of multiple evidentiary exclusions could ground jurisdiction, or whether each ruling had to be assessed individually.
  • Whether the trial judge erred in excluding complaint evidence under s 66 of the Evidence Act 1995 (NSW).
  • Whether the trial judge erred in excluding evidence of four pretext telephone conversations, either as irrelevant under s 55 or under the discretionary exclusion provisions in ss 135 and 137 of the Evidence Act 1995 (NSW).
  • Whether, given the revisions made to the trial judge's reasons after the Crown indicated an appeal, the second judgment (of 24 November 2015) properly represented the court's final reasoning.

Decision

Jurisdiction under s 5F(3A)

The respondent argued that jurisdiction under s 5F(3A) required assessment of each excluded piece of evidence individually, so that the cumulative effect of several exclusions could not be aggregated to establish that the Crown case was substantially weakened. The Court of Criminal Appeal rejected that construction. Applying s 8 of the Interpretation Act 1987 (NSW), the Court held that the word "evidence" in s 5F(3A) includes one or more pieces of evidence dealt with in a decision or ruling. The section is concerned with the overall effect of the ruling on the Crown case, not with each item of evidence in isolation. Jurisdiction was therefore established.

Complaint evidence (s 66)

The Court found that the trial judge erred in concluding the complaint evidence was inadmissible under s 66 of the Evidence Act. That section governs the admission of prior representations where the maker is available to give evidence. The Court held the complaints were admissible and that the trial judge's analysis misapplied the relevant test.

Pretext conversations (ss 55, 135 and 137)

The trial judge had also excluded the pretext conversations, treating the respondent's explanation for statements made during those calls as rendering them irrelevant. The Court of Criminal Appeal disagreed. The respondent's explanation did not nullify the adverse inferences that might arise from his admissions during those calls. To the extent his explanation referenced past allegations by or against the complainant or her sister, that material was capable of supporting rather than undermining the Crown's case, and did not strip the conversations of real probative value. The Court further found that while admission of the conversations would be prejudicial, it would not be unfairly prejudicial, and their probative value was not outweighed by the danger of unfair prejudice. No error under the House v R (1936) 55 CLR 499 standard was established in the approach to ss 135 and 137, but the underlying reasoning was found to be flawed.

Revisions to the trial judge's reasons

The Court noted a procedural concern: the trial judge revised his reasons after receiving notice of the intended appeal, with some material from the first judgment (18 November 2015) not appearing in the second, expanded judgment (24 November 2015). The Court acknowledged questions about whether those revisions were open, referring to Todorovic v Moussa (2001) 53 NSWLR 463 and the observation in Lam v Beesley (1992) 7 WAR 88 that changes of altered substance can render a conviction unsafe. However, as the parties agreed that the second judgment reflected the final reasons and no ground of appeal specifically addressed the revisions, the Court proceeded on that basis without deciding the point.

Orders Made

  • The appeal was upheld.
  • The rulings of 18 and 24 November 2015 were set aside.
  • The complaint evidence of the complainant and the three witnesses (MG, RB, and SS), and the evidence of the four pretext telephone conversations, were adjudged admissible.
  • The matter was remitted to Craigie SC DCJ for further hearing.

Key Takeaways

  • Under s 5F(3A) of the Criminal Appeal Act 1912 (NSW), the cumulative effect of multiple evidentiary exclusions can ground a Crown appeal: the provision is not limited to the effect of excluding a single piece of evidence but applies to the overall impact of a decision or ruling on the prosecution's case.
  • A trial judge's revisions to reasons for judgment after a party signals an appeal may raise questions of propriety, particularly where changes go beyond matters of form. The Court of Criminal Appeal noted the concern but left the issue unresolved on the facts of this case.
  • Where a respondent's explanation for statements made in pretext calls is itself consistent with the complainant's account of prior offending, that explanation does not necessarily reduce the probative value of the admissions or convert their receipt into unfair prejudice.
  • Excluding otherwise relevant complaint evidence and pretext conversations did not survive scrutiny: the Court of Criminal Appeal found error in the trial judge's application of ss 66, 55, 135, and 137 of the Evidence Act 1995 (NSW).
  • In applying ss 135 and 137, the relevant question is whether the probative value of the evidence is outweighed by the danger of unfair prejudice. Prejudice that flows simply from evidence tending to establish guilt does not, without more, constitute unfair prejudice.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 66, 108, 135, 137
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Interpretation Act 1987 (NSW), s 8

Cases:
- House v R [1936] HCA 40; (1936) 55 CLR 499
- Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463
- Lam v Beesley (1992) 7 WAR 88
- R v XY [2010] NSWCCA 181; (2010) 79 NSWLR 629
- R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363
- R v Cook [2004] NSWCCA 52
- R v Shamouil [2006] NSWCA 112; (2006) 66 NSWLR 228
- IMM v The Queen [2016] HCA 14
- Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507
- R v BD (1997) 94 A Crim R 131
- R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238
- SKA v Regina [2012] NSWCCA 205
- R v Ali [2015] NSWCCA 72
- R v Nguyen [2010] NSWCCA 97