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Court of Criminal Appeal 14 June 2017

McPhillamy v R

[2017] NSWCCA 130

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION EVIDENCE PROPERLY ADMITTED ADMISSIBILITY TENDENCY EVIDENCE

Citation: McPhillamy v R [2017] NSWCCA 130
Court: Court of Criminal Appeal, NSW
Date: 14 June 2017
Judges: Meagher JA; Harrison J; RA Hulme J

Background

The appellant was convicted in the District Court of six offences involving acts of indecency or sexual intercourse committed upon a child complainant, NC, during two incidents between November 1995 and March 1996. At the time, the complainant was approximately 11 years old and an altar boy at a Bathurst cathedral, while the appellant served as an acolyte responsible for supervising altar servers.

At trial, the Crown relied on the evidence of two other witnesses, TR and SL, as tendency evidence. Those witnesses described sexual assaults committed upon them by the appellant roughly 10 years before the charged conduct, when the appellant was an assistant house master at a Bathurst boarding school and TR and SL were approximately 13-year-old boarding students. The trial judge admitted this tendency evidence before the trial commenced but never delivered the promised written reasons for that ruling.

The trial took place approximately 30 years after the earlier incidents and almost 20 years after the charged events. The appellant's defence was that the complainant's allegations were false and had been fabricated in connection with a compensation claim against the Catholic Church.

  • Whether the tendency evidence of TR and SL had "significant probative value" as required by s 97(1)(b) of the Evidence Act 1995 (NSW)
  • Whether the probative value of that evidence substantially outweighed its prejudicial effect under s 101(2) of the Evidence Act 1995 (NSW)
  • Whether the trial judge's failure to give reasons for admitting the tendency evidence constituted a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW)

Decision

The Court divided 2:1, with Harrison and RA Hulme JJ forming the majority dismissing the appeal, and Meagher JA dissenting in favour of allowing it and ordering a retrial.

On significant probative value: The majority found that, despite some differences in setting and specific conduct, there was an overriding similarity between the earlier incidents and the charged offences. In all instances, the appellant had exploited a position of responsibility over young teenage boys, taking the opportunity presented when alone with them to engage in sexual acts. The majority rejected the view that differences in precise circumstances or environment disqualified the earlier conduct from establishing the relevant tendency. The majority also rejected the contention that a 10-year gap between the earlier conduct and the charged conduct fatally undermined the inference, finding that a jury could reasonably regard the tendency as enduring over that period.

Meagher JA (dissenting) took a different view on the significant probative value question. His Honour considered that the earlier conduct had occurred in the specific context of a boarding school where the boys were separated from their families and subject to the appellant's supervision in that particular capacity. That specificity meant the earlier conduct did not sufficiently demonstrate a willingness to act on a sexual interest in young boys in the different circumstances of the charged offences. In his Honour's view, the level of generality in the tendency alleged prevented the evidence from carrying significant probative value.

On the failure to give reasons: All three judges agreed that the trial judge's failure to deliver his promised reasons was a procedural irregularity. However, all three judges also agreed that this failure did not, in itself, constitute a miscarriage of justice. The decisive consideration was that the Court of Criminal Appeal was able to assess for itself whether the evidence had been correctly admitted, and there had been no practical procedural unfairness to either party during the trial as a result of the omission.

Orders Made

The majority (Harrison and RA Hulme JJ) proposed the following orders, which were the operative orders of the Court:

  • Extend time as required for the appellant to appeal
  • Grant leave to appeal against conviction
  • Dismiss the appeal

(Note: Meagher JA proposed different orders, including allowing the appeal, quashing the convictions, and ordering a new trial. Those orders did not command a majority.)

Key Takeaways

  • Tendency evidence need not involve conduct closely similar to the charged offences in all its particulars; what matters is whether there is sufficient overall similarity to support the existence of the tendency alleged, assessed in light of all relevant circumstances including the time elapsed between the earlier and charged conduct.

  • A 10-year gap between the prior conduct relied upon as tendency evidence and the charged conduct does not automatically preclude a finding of significant probative value, where the tendency could reasonably be regarded as enduring rather than transient.

  • Where a trial judge fails to give promised reasons for admitting tendency evidence, no miscarriage of justice results if the appellate court can independently assess the admissibility question and no practical procedural unfairness to the parties resulted from the omission during the trial itself, following Evans v R [2006] NSWCCA 277.

  • The majority and dissent in this case illustrate that the "significant probative value" threshold under s 97(1)(b) of the Evidence Act 1995 (NSW) can turn on nuanced factual judgments about how specific or general the alleged tendency is, and whether differences in context between prior and charged conduct are sufficiently material to undermine probative force.

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the balancing exercise under s 101(2) of the Evidence Act 1995 (NSW) (probative value substantially outweighing prejudicial effect) was also satisfied on the facts, with no separate analysis required beyond the findings on significant probative value.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1), 5F(3A), 6(1)
- Evidence Act 1995 (NSW), ss 95, 97(1), 101(2)
- Criminal Appeal Rules (NSW), r 25A(2)

Cases:
- Evans v The Queen [2006] NSWCCA 277; (2006) 164 A Crim R 489 (applied on the reasons question)
- Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- HML v The Queen (2008) 235 CLR 334; [2008] HCA 16
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215
- Campbell v R [2014] NSWCCA 175; (2014) 312 ALR 129
- El-Haddad v R (2014) 88 NSWLR 93; [2015] NSWCCA 10
- Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206
- Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
- Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Hoch v The Queen (1988) 165 CLR 292
- Director of Public Prosecutions v Boardman [1975] AC 421
- House v The King (1936) 55 CLR 499