BM v R

Citation: BM v R [2017] NSWCCA 253
Court: NSW Court of Criminal Appeal
Date: 27 October 2017
Judges: Bathurst CJ (with McCallum J and Bellew J agreeing)

Background

The applicant faced a joint indictment of 15 counts of sexual misconduct against three child complainants, all members of his extended family. The alleged offences included aggravated indecent assault, acts of indecency, and aggravated sexual intercourse without consent, with complainants aged between six and twelve years at the relevant times.

At a pre-trial hearing, the trial judge in the District Court dismissed the applicant's motion for separate trials of the counts relating to each complainant. The judge ruled that the evidence of each complainant was cross-admissible as tendency evidence against the applicant in a joint trial. The tendency evidence was said to show the applicant had a sexual interest in young females and a tendency to commit acts of indecency and indecent assault against them.

The applicant sought leave to appeal that interlocutory ruling to the Court of Criminal Appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW). He argued the trial judge had erred in finding the tendency evidence admissible and in concluding that a joint trial would not unfairly prejudice him.

Legal Issues

• Whether leave to appeal should be granted against the interlocutory order refusing separate trials
• Whether the trial judge erred in finding the tendency evidence had significant probative value under s 97 of the Evidence Act 1995 (NSW)
• Whether the trial judge erred in concluding there was no reasonable possibility of concoction or contamination among the three complainants
• Whether the trial judge erred in finding the probative value of the tendency evidence substantially outweighed the risk of unfair prejudice to the applicant under s 101 of the Evidence Act

Decision

Leave to appeal. The Court noted that leave to appeal against interlocutory orders is not readily granted, particularly where the order turns on admissibility of evidence. Admissibility rulings are not themselves interlocutory orders amenable to appeal under s 5F. The applicant was required to establish a House v The King-type error in the trial judge's exercise of discretion, meaning a wrong principle, reliance on irrelevant matters, a mistake of fact, or a result that is unreasonable or plainly unjust.

Significant probative value under s 97. The Court upheld the trial judge's finding that the tendency evidence had significant probative value. The similarities in the complainants' accounts were sufficiently striking and specific to be probative of the alleged tendency. The Court confirmed that s 97 does not require the court to weigh the credibility of the complainants or to assess their reliability at the admissibility stage, consistent with the High Court's approach in IMM v The Queen.

Concoction and contamination. The Court rejected the applicant's argument that a reasonable possibility of concoction or contamination undermined the probative value of the evidence. Each complainant denied fabricating her account or discussing its details with the others. No sufficient competing inference arose from the evidence to warrant exclusion under s 97. The Court also rejected the applicant's suggested motive for concoction, finding it was not supported by the evidence before the trial judge.

Section 101 and unfair prejudice. The trial judge expressly found that the significant probative value of the tendency evidence substantially outweighed any prejudicial effect, and recognised that appropriate jury directions could manage any residual risk of unfair prejudice. The Court of Criminal Appeal found no error in that conclusion. None of the four grounds of appeal was made out, and leave to appeal was refused.

Orders Made

No orders were made in this decision.

Key Takeaways

• In dismissing all grounds of appeal, the Court of Criminal Appeal reaffirmed that interlocutory appeals against orders refusing separate trials are subject to a high threshold, and are further complicated where admissibility of evidence is the central issue, since pure admissibility rulings are not themselves open to appeal under s 5F.
• A House v The King error must be demonstrated before the Court of Criminal Appeal will interfere with a trial judge's discretionary ruling on a separate trials application: it is insufficient to argue that the judge's weighing exercise was debatable.
• Under s 97 of the Evidence Act, the assessment of significant probative value does not involve weighing the credibility or reliability of tendency witnesses, as confirmed by the High Court in IMM v The Queen and applied here.
• Where complainants deny both fabrication and detailed discussion of their accounts with one another, and no tangible competing inference arises, a trial judge is not required to exclude tendency evidence on the basis of a speculative risk of concoction or contamination.
• Sufficient similarity across multiple complainants' accounts can satisfy the significant probative value threshold even where the Crown has other available evidence of the relevant tendency, since under s 97(1) tendency evidence is assessed having regard to all other evidence adduced or to be adduced.

Legislation and Cases Referenced

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

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