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Court of Criminal Appeal 27 August 2021

R v Passmore

[2021] NSWCCA 201

Also reported as (2021) 110 NSWLR 292
Sexual offences
CRIME APPEALS INTERLOCUTORY APPEAL BY CROWN AGAINST RULING ON EVIDENCE APPEALS INTERLOCUTORY APPEAL

Citation: Passmore v R [2021] NSWCCA 201
Court: Court of Criminal Appeal, NSW
Date: 27 August 2021
Judge(s): Payne JA; Price J; Wright J

Background

The respondent faced five charges of using a carriage service to transmit indecent material to a person under 16, contrary to s 474.27A(1) of the Criminal Code (Cth). The Crown alleged that during five telephone calls the respondent made sexualised and inappropriate remarks to the complainant, who was a child.

Before the trial commenced in May 2021, the trial judge delivered three carefully considered pre-trial rulings excluding pieces of prosecution evidence: a screenshot of a text message asking the complainant for a photo of herself in her pyjamas ("the pyjama picture text"); evidence from the complainant's police interview that the respondent told her to delete messages; and a six-page suicide note written by the respondent, together with related questioning from a record of interview.

The Commonwealth Director of Public Prosecutions (CDPP) brought an interlocutory appeal against all three rulings under s 5F(3A) of the Criminal Appeal Act 1912 (NSW). The Court noted that some submissions advanced on appeal had not been put to the trial judge with the same clarity, and expressly stated that nothing in its reasons was critical of his Honour.

  • Whether the three evidentiary rulings each "eliminated or substantially weakened" the prosecution's case, satisfying the jurisdictional precondition under s 5F(3A) of the Criminal Appeal Act 1912 (NSW)
  • What standard of appellate review applies to rulings on relevance under s 55, and to discretionary exclusions under s 137, of the Evidence Act 1995 (NSW)
  • Whether the pyjama picture text was relevant as context evidence and, if so, whether its exclusion substantially weakened the Crown case (ground 1)
  • Whether the evidence of the respondent telling the complainant to delete messages was relevant and improperly excluded under s 137 (ground 2)
  • Whether the suicide note and related record of interview contained admissions and evidence of consciousness of guilt, and whether s 137 required their exclusion (grounds 3(a)-(d))

Decision

Jurisdictional precondition. The Court clarified the threshold under s 5F(3A): the statutory language requires a finding that the ruling "eliminates or substantially weakens" the prosecution's case. The Court cautioned against reading R v Shamouil as substituting a "cogency or force" test for that statutory language. The Court applied R v Chase and found the precondition was satisfied in relation to all three rulings.

Standard of review. The Court held that decisions on relevance under s 55, and discretionary exclusions under s 137, both involve evaluative judgments that have only one correct answer. The correctness standard, rather than a House v The King discretionary error standard, therefore applies on appeal. This confirmed the approach taken in Rogerson v R; McNamara v R and aligned with High Court authority including Bauer, Fox v Percy, and SZVFW.

Grounds 2 and 3 (unanimous). The Court unanimously found that the evidence of the instruction to delete messages was relevant to circumstantial proof of the Crown case, and that its significant probative value was not outweighed by the danger of unfair prejudice. Similarly, the suicide note and related record of interview were capable of constituting compelling admissions and evidence of consciousness of guilt. In neither instance did the danger of unfair prejudice outweigh the probative value, and exclusion under s 137 was not warranted. Both exclusions substantially weakened the Crown case.

Ground 1 (majority). Price and Wright JJ held that the pyjama picture text was relevant beyond merely establishing the covert nature of the relationship. It was capable of showing the commencement of the period in which the respondent's communications began to make the complainant uncomfortable, and was fundamental to the jury's understanding of how the relationship changed. Their Honours also noted that labelling evidence as "relationship" or "context" evidence, terms with no statutory basis, risks deflecting attention from the actual statutory questions of relevance and prejudice. Payne JA dissented on this ground, finding that on the limited basis the CDPP tendered the evidence (as context only, with tendency use expressly disavowed), its exclusion did not substantially weaken the Crown case.

Orders Made

  • Appeal allowed
  • The trial judge's ruling of 2 June 2021 excluding the suicide note (Exhibit F) and related record of interview questioning (Exhibit G) is set aside
  • The trial judge's ruling of 1 June 2021 excluding the complainant's evidence that the respondent told her to delete messages (answers to Q130 to Q133) is set aside
  • The trial judge's ruling of 31 May 2021 excluding the pyjama picture text screenshot (Exhibit E) is set aside
  • Matter remitted to the trial judge

Key Takeaways

  • Under s 5F(3A) of the Criminal Appeal Act 1912 (NSW), the jurisdictional precondition for a Crown interlocutory appeal is that the ruling "eliminates or substantially weakens" the prosecution's case; the Court of Criminal Appeal clarified that this statutory language cannot be replaced by a "cogency or force" formulation derived from Shamouil.
  • Rulings on relevance under s 55, and rulings on discretionary exclusion under s 137, of the Evidence Act 1995 (NSW) attract the correctness standard on appeal, not the more deferential House v The King standard applicable to genuinely discretionary decisions.
  • Consciousness of guilt evidence and evidence of instructions to delete communications may carry significant probative value that is not outweighed by the danger of unfair prejudice, rendering exclusion under s 137 inappropriate where that is the case.
  • A majority of the Court confirmed that attempts to finely categorise evidence by non-statutory labels such as "relationship evidence" or "context evidence" can obscure the primary statutory inquiry into relevance under s 55 of the Evidence Act.
  • Where a party expressly limits the basis on which it tenders evidence (for example, disavowing tendency use), that limitation may constrain the scope of the appellate challenge to any exclusion ruling, as Payne JA's dissent on ground 1 illustrates.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5F(3A), 5F(4), 5F(5)
- Evidence Act 1995 (NSW), ss 55, 88, 97, 135, 137
- Criminal Code (Cth), s 474.27A(1)

Cases
- R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
- R v Chase (a pseudonym) [2018] NSWCCA 71
- Rogerson v R; McNamara v R [2021] NSWCCA 160
- The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17
- Norman v R [2012] NSWCCA 230
- DJV v R (2008) 200 A Crim R 206; [2008] NSWCCA 272
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63