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8
Court of Criminal Appeal 14 December 2018

Director of Public Prosecutions (NSW) v RDT

[2018] NSWCCA 293

Sexual offences
APPEALS CRIMINAL APPEAL ACT 1912 (NSW), S 5F STANDARD OF APPELLATE REVIEW TENDENCY EVIDENCE CRIMINAL PROCEEDINGS RELEVANCE

Citation: Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293
Court: Court of Criminal Appeal
Date: 14 December 2018
Judges: Basten JA at [1]; Johnson J at [54]; R A Hulme J at [59]

Background

The respondent faced trial in the District Court on an indictment charging three counts of sexual intercourse with a child under 10 years and one count of an act of indecency with a child under 10 years. The complainant was the respondent's daughter, who was between three and five years old at the time of the alleged conduct, which occurred between 2006 and 2008.

Before trial commenced, the Director of Public Prosecutions served a tendency notice seeking to adduce evidence of conduct occurring in 2015. That conduct, which had resulted in guilty pleas, included the respondent expressing a sexual interest in female toddlers, actively pursuing access to very young children, and admitting to police that he had held such an interest for approximately ten to twenty years.

The trial judge rejected the tendency notice at the pre-trial stage. The Director appealed that ruling to the Court of Criminal Appeal under section 5F(3A) of the Criminal Appeal Act 1912 (NSW), which requires the ruling to have eliminated or substantially weakened the prosecution's case before the appeal right is enlivened.

Legal Issues

  • What standard of appellate review applies to an interlocutory appeal under section 5F(3A) against a ruling excluding tendency evidence: the correctness standard (Warren v Coombes) or the House v The King discretionary error standard?
  • Did the trial judge err in the manner in which he applied the relevant legal principles from McPhillamy v The Queen before the High Court's reasons in that case were delivered?
  • Did the tendency evidence satisfy the threshold of "significant probative value" under section 97 of the Evidence Act 1995 (NSW)?
  • Did the probative value of the tendency evidence substantially outweigh any prejudicial effect under section 101(2) of the Evidence Act, as required for the evidence to be admissible in criminal proceedings?

Decision

Standard of Appellate Review

Basten JA concluded that the correctness standard applies when this Court reviews a trial judge's determination on the admissibility of tendency evidence, whether on an interlocutory appeal or on a conviction appeal (at [24]). The reasoning, drawing on the High Court's analysis in R v Bauer (a pseudonym), is that the question whether evidence has significant probative value admits of only one correct answer and is not a discretionary choice within a permissible range (at [16]). Johnson J and R A Hulme J declined to resolve this question, noting that counsel had not addressed it, but both were satisfied that the trial judge's errors would have been established under either standard (at [55], [59]).

Error in Relying on the McPhillamy Dissent

The trial judge knew that the High Court had allowed the appeal in McPhillamy v The Queen (setting aside this Court's orders) but had not yet published reasons. He reviewed the transcript of High Court argument and concluded that the dissenting judgment of Meagher JA in the Court of Criminal Appeal had been "accepted entirely." The Court held that approach was wrong in principle (at [30]). The correct course was to disregard McPhillamy as authority and apply established High Court principles, including Hughes v The Queen (at [30]). The reasoning of the dissenting judge focused on section 97(1) probative value, not the section 101(2) balancing exercise, and that distinction further compounded the trial judge's error (at [29]).

Significant Probative Value Under Section 97

The tendency evidence had significant probative value for several reasons that the trial judge failed to address (at [36]). The respondent admitted in a 2015 police interview that he had held a sexual interest in very young children for ten to twenty years, which rendered the eight-year gap between the charged conduct and the 2015 conduct largely immaterial (at [41]). The 2015 conduct went beyond mere fantasy and extended to active pursuit of access to young children; additionally, the respondent had pleaded guilty to related charges (at [34], [41]). The Court distinguished the present facts from McPhillamy, where there was no comparable admission of a continuing propensity and no such active conduct (at [33]-[34]).

Section 101(2) Balancing Exercise

The trial judge's treatment of section 101(2) was independently flawed. He conducted the balancing exercise without having first established that the evidence possessed significant probative value, making it unclear what level of probative value he was placing on the balance (at [37]). He also failed to identify the specific prejudicial effect to be weighed against that probative value (at [38]). The Court conducted the section 101(2) analysis itself and found that the probative value substantially outweighed any prejudicial effect. The charges themselves were likely to generate juror revulsion regardless of the tendency evidence, so appropriate directions were already required in any event (at [43]). The tendency evidence would permissibly allow the jury to assess the complainant's account as reliable, and that use was not a form of prejudice (at [44]).

Orders Made

  • The trial judge's ruling of 12 September 2018 rejecting the tendency evidence was set aside.
  • The tendency evidence itemised in the notice dated 16 August 2018, together with additional material served the day before the District Court hearing, was directed to be admissible at trial, subject to the limitation below.
  • The admissible material was limited to that described in paragraphs 13 to 16 of the Director's submissions in the Court of Criminal Appeal (as set out in Part B of the schedule to the reasons), excluding portions of recorded conversations that had no direct bearing on the pleaded tendency.

Key Takeaways

  • Basten JA held that the admissibility of tendency evidence presents a binary question to which only one correct answer exists, and an appellate court reviewing such a ruling under section 5F(3A) should apply the correctness standard rather than the more deferential House v The King discretionary error standard (at [16], [24]). Johnson J and R A Hulme J expressly reserved this question for a future appeal where submissions are received on the point (at [55]-[56], [59]).

  • A trial judge who becomes aware that the High Court has allowed an appeal and set aside orders of a lower court, but where reasons have not yet been delivered, must disregard the lower court decision as authority and apply existing High Court precedent. Examining hearing transcripts to predict the High Court's reasoning is not a permissible approach (at [28]-[30]).

  • Under sections 97 and 101 of the Evidence Act, an accused's own admission of a long-standing sexual interest in very young children, combined with active conduct in pursuit of that interest, can supply the temporal continuity needed to render tendency evidence highly probative, even where there is a substantial gap between the charged offences and the tendency conduct (at [34]-[36], [41]).

  • The section 101(2) balancing exercise must proceed on an identified probative value and an identified prejudicial effect. Conducting that exercise after having already rejected significant probative value under section 97 will ordinarily produce a legally flawed result (at [37]-[38]).

  • Where the charged conduct itself is of a nature likely to generate juror revulsion, the additional prejudice attributable specifically to tendency evidence may be limited, because jury directions will already be required to address the risk of reasoning from revulsion rather than evidence (at [43]).

Legislation and Cases Referenced

Legislation
- Civil Procedure Act 2005 (NSW), s 56; Pt 6
- Criminal Appeal Act 1912 (NSW), s 5F, 17
- Evidence Act 1995 (NSW), ss 97, 101

Cases
- DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
- Director of Public Prosecutions (NSW) v Moradian, Saliba and Sparos [2010] NSWCCA 27
- Director of Public Prosecutions v Martin (a pseudonym) [2018] NSWCCA 207
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hughes v The Queen (2017) 92 ALJR 52; [2017] HCA 20
- In Re the Will of Gilbert (1946) 46 SR (NSW) 318
- KJM v The Queen (No 2) (2011) 33 VR 11; [2011] VSCA 268
- McCartney v The Queen (2012) 38 VR 1; [2012] VSCA 268
- McPhillamy v The Queen [2017] NSWCCA 130
- McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045
- Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713; [2018] HCA 30
- R v AB (No 2) [2018] NSWCCA 148
- R v Aubrey [2012] NSWCCA 254
- R v Bauer (a pseudonym) (2018) 92 ALJR 846; [2018] HCA 40
- R v Ford [2009] NSWCCA 306; 201 A Crim R 451
- R v Gilfillan [2003] NSWCCA 102; 139 A Crim R 460
- R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399
- Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
- Webb v R [2012] NSWCCA 216