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Court of Criminal Appeal 24 June 2020

Vagg v R

[2020] NSWCCA 134

Sexual offences
EVIDENCE CRIME TENDENCY EVIDENCE

Citation: Vagg v R [2020] NSWCCA 134
Court: Court of Criminal Appeal, New South Wales
Date: 24 June 2020
Judge(s): Simpson AJA (primary judgment); Rothman J and N Adams J (agreeing)

Background

The appellant was a window cleaner engaged by a family to clean windows at their Sydney home. He was convicted by a jury of two counts of sexual intercourse with a child under 10 years of age, contrary to s 66A of the Crimes Act 1900 (NSW), both alleged to have occurred on the same day in 2010. The complainant was seven years old at the time. The offences involved the appellant digitally penetrating the complainant on two separate occasions while performing his work at the property.

At trial, both the identity of the offender and whether the offences had in fact been committed were live issues. The Crown sought to rely on tendency evidence from another child, referred to as MF, who was six or seven years old at the relevant time. MF described two incidents, occurring at family gatherings some years after the alleged offending against the complainant, in which the appellant had used pretexts involving bathrooms to lead her to secluded locations. One incident culminated in the appellant exposing his penis to her.

The appellant was convicted and sentenced to an aggregate term of eight years and four months imprisonment, with a non-parole period of five years and four months. He did not appeal against sentence. His sole ground of appeal against conviction was that the trial judge had erred in admitting the tendency evidence.

  • Whether MF's evidence supported the existence of a tendency in the appellant to have a sexual interest in girls under the age of ten
  • Whether MF's evidence supported the existence of a tendency to act on that sexual interest
  • Whether the tendency evidence had significant probative value, as required by s 97(1) of the Evidence Act 1995 (NSW)
  • Whether the probative value of the evidence substantially outweighed its prejudicial effect on the accused, as required by s 101(2) of the Evidence Act 1995 (NSW)

Decision

Issue 1: Tendency to have a sexual interest in young girls. The Court found that the first incident involving MF, standing alone, would not significantly support the alleged tendency. However, tendency evidence is not to be assessed in isolation. The exposure of the appellant's penis during the second incident was an unmistakable indication that his motivation throughout that entire incident was sexual. From that finding, the Court took what it described as a short further step to conclude that the first incident also reflected a sexual motivation, even though it was less clearly manifested. Taken together, MF's evidence was sufficient to establish the tendency alleged by the Crown.

Issue 2: Tendency to act on that interest. The Court held that the same evidence capable of establishing a tendency to have a particular state of mind will often simultaneously establish a tendency to act on that state of mind. Although the conduct towards MF was different in nature from the direct sexual offending against the complainant, the evidence showed the appellant acting on his sexual interest in comparable ways: using pretexts and opportunities to isolate young girls. That was enough to satisfy the requirement.

Issue 3: Significant probative value. Because identity was in dispute, evidence that the appellant had a sexual interest in young girls and a tendency to act on it carried particular weight. The Court reasoned that such evidence was likely to be influential in determining whether the appellant was the person who committed the offences. The tendency evidence therefore met the threshold of significant probative value under s 97(1)(b).

Issue 4: Probative value versus prejudicial effect. The Court acknowledged that the evidence was inevitably prejudicial. However, it noted that appropriate judicial directions can substantially reduce the risk of misuse. No complaint was made about the adequacy of the trial judge's directions. The Court was satisfied that the probative value of the evidence substantially outweighed its prejudicial effect, satisfying the further requirement imposed by s 101(2) for criminal proceedings.

Orders Made

  • Time for filing a notice of appeal extended to 18 December 2019
  • The appeal dismissed

Key Takeaways

  • Tendency evidence need not be assessed incident by incident in isolation: the Court of Criminal Appeal confirmed that the cumulative effect of multiple incidents can establish a tendency even where individual incidents are ambiguous on their own.
  • Under ss 97 and 101 of the Evidence Act 1995 (NSW), it is the tendency to act unlawfully on a sexual interest, not merely the existence of that interest, that gives tendency evidence its significant probative value in criminal proceedings.
  • Where identity is genuinely in issue at trial, evidence of a tendency to engage in sexual conduct with children carries heightened probative weight because it bears directly on the question of whether the accused was the perpetrator.
  • The conduct relied upon as tendency evidence does not need to mirror the precise nature of the charged offences: differences in the form of sexual conduct do not automatically defeat admissibility, provided there are sufficiently common features linking the prior (or subsequent) conduct to the charged offending.
  • Appropriate jury directions on the permissible use of tendency evidence are a significant factor in the s 101(2) balancing exercise, and an unchallenged direction will tend to support a finding that probative value substantially outweighs prejudicial effect.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A
- Criminal Appeal Act 1912 (NSW), ss 10(1)(a), 10(1)(b)
- Criminal Appeal Rules (NSW), rr 3A(1)(a), 3A(2)
- Criminal Procedure Act 1986 (NSW), s 306S
- Evidence Act 1995 (NSW), ss 55, 56, 97(1), 101(2)

Cases
- BC v R [2019] NSWCCA 111
- DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
- Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
- R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338
- R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306
- The Queen v Bauer (a pseudonym) [2018] HCA 40; (2018) ALJR 846