AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 27 October 2017

BM v R

[2017] NSWCCA 253

Sexual offences
CRIMINAL LAW APPEAL INTERLOCUTORY DECISIONS

Citation: BM v R [2017] NSWCCA 253
Court: Court of Criminal Appeal
Date: 27 October 2017
Judges: Bathurst CJ (at [1]); McCallum J (at [70]); Bellew J (at [71])

Background

The applicant faced a joint indictment of 15 counts of sexual misconduct involving three child complainants, all members of his extended family. The alleged offending spanned a period from 2005 to 2015, with each complainant describing conduct that occurred in a domestic setting and involved the applicant's direct physical access to young girls in his family network.

The applicant sought separate trials for the counts relating to each complainant. The motion turned on whether each complainant's evidence was admissible as tendency evidence in the trial of counts relating to the others, under ss 97 and 101 of the Evidence Act 1995 (NSW). The trial judge dismissed the motion, ruled the tendency evidence admissible, and ordered a joint trial. The applicant then sought leave to appeal that interlocutory ruling to the Court of Criminal Appeal.

A central factual dispute concerned the circumstances in which the complainants came to disclose their allegations. The complaints unfolded through a series of conversations and interactions between the complainants and family members before any formal police statements were made, giving rise to arguments about possible concoction or contamination.

Legal Issues

  • Whether the trial judge erred in refusing to order separate trials
  • Whether the trial judge erred in finding, under s 97 of the Evidence Act, that the tendency evidence had significant probative value, given the circumstances of complaint disclosure and alleged risk of concoction or contamination
  • Whether the trial judge erred in finding no evidence of concoction or contamination sufficient to deprive the tendency evidence of significant probative value
  • Whether the trial judge erred in finding, under s 101 of the Evidence Act, that the probative value of the tendency evidence substantially outweighed the risk of unfair prejudice to the applicant

Decision

Preliminary: Standard of Review

Because this was an appeal against an interlocutory ruling involving the exercise of a discretion, the applicant was required to establish error of the kind identified in House v The King (1936) 55 CLR 499: that the trial judge acted on a wrong principle, allowed irrelevant matters to influence the decision, mistook the facts, failed to consider material matters, or reached a result that was unreasonable or plainly unjust (at [7]).

Ground 1: Refusal of Separate Trials

The Court of Criminal Appeal found no error in the trial judge's refusal to order separate trials. That conclusion followed directly from the finding that the tendency evidence was properly admitted (at [62]).

Ground 2: Admissibility Under s 97 and the Concoction/Contamination Question

The trial judge found the Crown had excluded the reasonable possibility of concoction or contamination. The Court noted this framing was actually more favourable to the applicant than the law required: the correct test under s 97 is whether there is evidence of concoction or contamination giving rise to a competing inference sufficient to deprive the tendency evidence of significant probative value, not whether the Crown has affirmatively excluded that possibility (at [63]).

On the facts, the Court found the trial judge's conclusion was plainly open. PH had never discussed the substance of her allegations with LMM or KH before making her complaint, and had only learned that the other two had complained. KH and LMM each denied having detailed discussions about their allegations with one another (at [64]-[65]). Absent impermissible credibility assessments, there was "virtually nothing" to generate a competing inference sufficient to deprive the evidence of significant probative value (at [65]).

Ground 3: Motive to Lie (DoCS Threat)

The applicant argued that a threat by him to report the carer PM to the Department of Community Services gave each complainant a motive to fabricate. The Court rejected this. Only LMM gave evidence she was aware of any such threat, and she expressly denied it motivated her complaint. PH and KH each denied knowing of any such threat. The Court found this was insufficient to generate a competing inference warranting exclusion under s 97 (at [66]).

Ground 4: Exclusion Under s 101

The trial judge expressly held that the significant probative value of the tendency evidence substantially outweighed any prejudice to the applicant, and found that appropriate jury directions could accommodate any residual risk of unfair prejudice. The Court of Criminal Appeal found no error in that analysis (at [68]). The submission that probative value was reduced because the Crown had other uncontested tendency evidence was also rejected: under Hughes v The Queen [2017] HCA 20 at [61], tendency evidence is assessed having regard to all other evidence adduced or to be adduced, not in isolation (at [67]).

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • Under s 97 of the Evidence Act, the test for whether concoction or contamination defeats the admissibility of tendency evidence is whether there is evidence giving rise to a competing inference sufficient to deprive the evidence of significant probative value. It is not necessary for the Crown to exclude the reasonable possibility of concoction or contamination, and a trial judge who applies that higher standard errs in a manner favourable to the accused (at [63]).

  • Where complainants deny detailed pre-complaint discussions and there is no affirmative evidence suggesting fabrication, the absence of credibility-based inquiry means little remains to support a competing inference of contamination. Under IMM v The Queen (2016) 257 CLR 300, assessing the credibility or reliability of tendency evidence in the s 97 inquiry is impermissible (at [65]).

  • A proposed motive to concoct will not generate a sufficient competing inference unless there is evidence that the motive actually operated on the relevant complainants. Awareness of a threat or grievance by one complainant, expressly denied as a motivation, does not establish a concoction inference affecting all complainants (at [66]).

  • Tendency evidence is not assessed in isolation for the purposes of either s 97 or s 101. The Court of Criminal Appeal confirmed, applying Hughes v The Queen [2017] HCA 20, that the existence of other admitted tendency evidence does not diminish the probative value of additional tendency evidence (at [67]).

  • Refusing leave to appeal an interlocutory ruling on tendency evidence requires the applicant to demonstrate House v The King error in the trial judge's exercise of discretion. The Court of Criminal Appeal found no such error across all four grounds advanced, despite some imprecision in the trial judge's language (at [61]-[69]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61M, 610, 61N
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 97, 101

Cases
- BC v R [2015] NSWCCA 237
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- DJW v R [2015] NSWCCA 164
- DSJ v R; NS v R [2014] NSWCCA 77
- Elomar v R [2014] NSWCCA 303
- GM v R [2016] NSWCCA 78
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hughes v R [2015] NSWCCA 330
- Hughes v The Queen [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Jones v R [2014] NSWCCA 280
- McIntosh v R [2015] NSWCCA 184
- R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306