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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, New South Wales
Date: 14 June 2017
Judges: Meagher JA; Harrison J; RA Hulme J

Background

The appellant was convicted of six offences of indecency or sexual intercourse committed upon an 11-year-old altar boy (NC) between November 1995 and 31 March 1996. The offending was alleged to have taken place in a cathedral toilet in Bathurst, where the appellant held responsibility for supervising the altar servers. NC was the sole witness to the charged conduct, and his credibility was challenged at trial on grounds that he had fabricated allegations to support a compensation claim, including one allegation he conceded was false.

At trial the Crown adduced tendency evidence from two men (TR and SL) who described sexual assaults committed on them by the appellant in 1985, when they were approximately 13 years old and boarding at a Bathurst secondary college where the appellant worked as an assistant housemaster. Those incidents occurred roughly ten years before the charged conduct and in materially different circumstances. Neither TR nor SL was challenged in cross-examination as to the accuracy of their accounts.

The trial judge admitted the tendency evidence before the jury was empanelled but provided no reasons for that ruling, despite indicating he would do so later. The promised reasons were never delivered. The appellant appealed on three overlapping grounds: that the evidence was wrongly admitted, that its admission caused a miscarriage of justice, and that the failure to provide reasons was itself a miscarriage of justice.

Legal Issues

  • Whether the tendency evidence of TR and SL had "significant probative value" within the meaning of 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, and whether that failure prevented the application of the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether proceedings should be adjourned pending the High Court's determination of Hughes v R

Decision

Procedural Issue: Adjournment Application

The Court declined to adjourn the hearing to await the High Court's decision in Hughes v R. As Meagher JA explained, courts can only act on the law as it stands and cannot speculate on future alterations (at [24]). It was not sufficiently clear that the principles at issue in Hughes would determine the outcome of this appeal.

Ground 3: Failure to Give Reasons

The majority (Harrison and RA Hulme JJ) accepted that the trial judge's failure to give reasons was a procedural irregularity, and the Crown conceded reasons should have been given (at [132]-[133]). However, the majority concluded that no miscarriage of justice resulted. The key principle, drawn from Evans v The Queen and Madubuko v The Queen, is that a failure to give reasons does not ordinarily constitute a substantial miscarriage of justice where there is no practical procedural unfairness and where the appellate court is itself able to assess whether the ruling was correct (at [134]). The appellant did not identify any practical impediment to the conduct of the trial arising from the absence of reasons, and this Court was able to undertake its own assessment of admissibility.

Ground 2: Whether Admission of Tendency Evidence Caused a Miscarriage of Justice

This was the central and contested ground, on which the three judges divided. Meagher JA concluded that the tendency evidence lacked significant probative value and therefore should not have been admitted (at [117]-[119]). In his Honour's view, three compounding deficiencies undermined the inferential reasoning the Crown sought to engage. The tendency conduct occurred ten years before the charged conduct with no intervening evidence of its persistence. The circumstances of the earlier conduct, where vulnerable boarding students were groomed over time in the appellant's private room, differed markedly from the charged conduct, where the appellant openly and without prior relationship followed an altar boy into a public toilet. And the tendency as ultimately put to the jury was expressed at a high level of generality. Together, these matters meant the earlier evidence did not demonstrate that the appellant was prepared to act on his sexual interest in circumstances resembling those of the charged offences (at [116]-[117]).

Harrison and RA Hulme JJ disagreed. In their view, the overriding similarity across all incidents was that the appellant exploited his position of responsibility over young teenage boys to engage in sexual conduct with them when alone (at [127]). The differences in setting and the nature of the acts did not negate that core similarity. The majority also considered the ten-year gap did not fatally undermine the inference: a sexual interest in young teenage boys could rationally be regarded by a jury, drawing on common sense and experience, as an enduring tendency unlikely to have dissipated within that period (at [129]). Accordingly, the majority concluded the evidence had significant probative value and its probative value substantially outweighed any prejudicial effect. Ground 2 failed (at [130]-[131]).

Ground 1: Error in the Original Ruling

Because the majority found no miscarriage of justice under Ground 2, Ground 1 also failed. The majority concluded the trial judge did not err in admitting the tendency evidence (at [131]).

Orders Made

  • Time extended as required
  • Leave to appeal against conviction granted
  • Appeal dismissed

Key Takeaways

  • A trial judge's failure to give promised reasons for an evidentiary ruling does not automatically constitute a substantial miscarriage of justice. Where there is no practical procedural unfairness to either party and the appellate court can assess the correctness of the ruling for itself, the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) remains available to the Crown (at [42], [134]).

  • Under s 97(1)(b) of the Evidence Act 1995 (NSW), the significant probative value of tendency evidence must be assessed by reference to the specific tendency the Crown seeks to prove and the inferential reasoning that evidence is tendered to engage. Evidence expressing a tendency at a high level of generality may, depending on context, carry insufficient probative force to satisfy the threshold (at [114]-[117], per Meagher JA dissenting).

  • A majority of the Court of Criminal Appeal held that a tendency to be sexually interested in young teenage boys and to act upon that interest can be regarded as an enduring tendency, such that a ten-year gap between tendency conduct and charged conduct does not necessarily defeat admissibility (at [129]).

  • The significance of the passage of time between tendency conduct and charged conduct is inherently fact-dependent. Relevant considerations include whether the tendency manifested itself during the intervening period, the specificity of the tendency proved by the earlier conduct, and the degree of similarity between the earlier and charged circumstances (at [105]-[116]).

  • Where the Court of Criminal Appeal is itself able to assess whether tendency evidence was properly admitted, it may determine that question and apply the proviso even in the absence of primary reasons, provided no practical unfairness resulted from that absence (at [134]).

Legislation and Cases Referenced

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

Cases
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
- Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
- BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215
- BP v R; R v BP [2010] NSWCCA 303
- Campbell v R [2014] NSWCCA 175; (2014) 312 ALR 129
- City of Sydney Council v Satara [2007] NSWCA 148
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- Director of Public Prosecutions v Boardman [1975] AC 421
- Doyle v R; R v Doyle [2014] NSWCCA 4
- El-Haddad v R (2014) 88 NSWLR 93; [2015] NSWCCA 10
- Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206
- Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59
- Evans v The Queen [2006] NSWCCA 277; (2006) 164 A Crim R 489
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233
- HML v The Queen (2008) 235 CLR 334; [2008] HCA 16
- Hoch v The Queen (1988) 165 CLR 292
- House v The King (1936) 55 CLR 499
- Hughes v R [2015] NSWCCA 330
- Hughes v The Queen [2016] HCATrans 201
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886
- Le v R [2012] NSWCCA 202
- Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
- Madubuko v The Queen [2011] NSWCCA 135; (2011) 210 A Crim R 249
- Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2
- Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29
- Perry v The Queen (1982) 150 CLR 580
- Pfennig v The Queen (1995) 182 CLR 461
- PWD v R [2010] NSWCCA 209; (2010) 205 A Crim R 75
- R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308
- R v Ford [2009] NSWCCA 306; (2010) 201 A Crim R 451
- R v McCullagh (No 3) [2007] VSCA 293; (2007) 179 A Crim R 334
- Ramsay v Aberfoyle Manufacturing (Australia) Pty Ltd (1935) 54 CLR 230
- RH v R [2014] NSWCCA 71; (2014) 241 A Crim R 1
- Saoud v R [2014] NSWCCA 136
- Sokolowskyj [2014] NSWCCA 55; (2014) 239 A Crim R 528
- Thompson v The King [1912] AC 221
- Velkoski v R (2014) 45 VR 680; [2014] VSCA 121
- Warren v Coombes (1979) 142 CLR 531
- Webb v The Queen (1994) 13 WAR 257
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81