The High Court has allowed a Crown appeal against a decision of Victoria’s Court of Appeal that had quashed the defendant’s convictions on 18 counts of sexual offences. When he was first tried in 2014, the defendant was charged with 37 counts against five complainants related to events between 1967 and 1998 and convicted of 33 of those. However, the Court of Appeal quashed those convictions in 2015, criticising the prosecution for overloading the indictment. The defendant then faced a series of separate (and in five instances aborted) trials relating to the three of the complainants and was acquitted in relation to two of them. The High Court appeal concerns the defendant’s 18 convictions a 2016 trial in relation to the third complainant, his foster daughter, for alleged sexual offending between 1988 and 1998, when she was aged between 4 and 15 and the defendant was between 42 and 53.

In 2017, the Court of Appeal quashed the defendant’s convictions for the second time and ordered a new trial, on three broad grounds. First, that the jury should not have been shown a recording of the complainant’s evidence at a previous trial, because her expressed strong preference not to testify was not sufficient to justify such a step. Second, that the jury should not have been told of evidence of uncharged sexual offences by the defendant against the complainant, because such evidence did not satisfy the requirement of ‘significant probative value’. Third, that the jury should not have been told that the complainant described the accused’s offending to a school friend in 1998, as there was no evidence that the events were ‘fresh in her memory’ when she described them and her description was too generic to have any probative value.

The High Court (Kiefel CJ,  Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ) unanimously allowed the Crown’s appeal, rejecting all three grounds of appeal relied upon by the Court of Appeal.

In relation to the jury being shown a recording of the complainant’s earlier evidence, the joint judgment held (at [41]-[46]) that the trial judge was correct to hold that the use of a prior recording met the statutory test of being ‘in the interests of justice’. One statutory factor – ‘the availability or willingness of the complainant to give further evidence’ – does not require that the complainant ‘refuse’ to testify; rather, its significance varies depending on the other factors ([41]). In the present case, where the earlier recording was complete, the earlier cross-examination was ‘conspicuously competent’ and there were not editing or other problems, a lesser degree of unwillingness suffices to render the use of the recording ‘in the interests of justice’ ([42]). Because the defendant did not, at the trial, challenge the fact of the complainant’s strong preference not to testify, it does not ‘lie in [his] mouth’ to later complain that the trial judge should have investigated the claim ([44]-[46]).

In relation to the jury being shown evidence of uncharged offending by the accused against the complainant, the joint judgment held (at [48]) that ‘[h]enceforth’, evidence of uncharged acts of the accused against the complainant (whether criminal or not) ‘may be admissible as tendency evidence’ even if they lack any ‘special’ feature of the kind discussed in earlier cases, on the ‘juridical basis’ ([51]) of ‘ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person’. Such evidence can have significant probative value even if it is sourced from the complainant as ‘it adds a further element to the process of reasoning to guilt’ ([51]). The contrary holding of a majority of the High Court in IMM v R [2016] HCA 14 does not apply ‘where what is in issue is a course of offending comprised of a succession of uncharged sexual acts, of generally a similar kind to the charged acts, interspersed between the charged acts throughout the alleged period of offending.’ ([55]). The ‘special features’ test is limited to where ‘it is sought to adduce evidence from the complainant of a single relatively remote and innocuous uncharged act’ or to cases of multiple complainants ([56]-[57].)

On the specific evidence in this case, the joint judgment observed (at [61]) that ‘it is for the [appeal] court itself to determine whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was’. Here, the trial judge correctly ruled the evidence of uncharged acts by the accused (including evidence given by the complainant’s sister) was admissible on the basis that ‘where a person is sexually attracted to another and has acted upon that attraction by engaging in sexual acts with him or her, the person is the more likely to seek to continue to give effect to the attraction by engaging in further sexual acts with the other person as the opportunity presents.’ ([62], [64]). Neither the fact that the sister’s evidence related to events she witnessed at the age of 4 or the risk of contamination or collusion arising from discussions with others meant that no rational jury could accept the evidence; rather, in accordance with the ruling in IMM v R, such questions of credibility or reliability ‘falls to be assessed by the jury as part of the ordinary process of assessment of all factors that may affect the credibility and reliability of the evidence.’ [70].

On the question of whether the trial judge should have excluded the evidence of the sister on the basis of potential prejudice, the joint judgment observed (at [73]) that the terms ‘prejudicial effect’, ‘unfairly prejudicial’ and ‘unfair prejudice’ in ss 101, 135 and 137 of the uniform evidence legislation ‘each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way’. Here, the jury was unlikely to have been overwhelmed by the number of charges because the Crown case was essentially simple ([74]), the need to weigh the sister’s age and the time that had passed was ‘within the range of ordinary experience’ ([75]), her evidence was ‘not confusing but straightforward’ ([76]), the jury was not bound to treat similarities and differences in accounts as throwing doubt on one or the other witness’s testimony ([78]) and, in Victoria, trial judges are not required to direct the jury that the uncharged events must be proved beyond reasonable doubt ([80]). The joint judgment rejected an argument that the tendency notice supplied by the prosecution under s97(1)(a) was ‘broad-brush’, holding that the notice – which relied on tendencies to have a sexual interest in the complainant and to act on that interest – ‘was in a conventional form for a single complainant sexual offences case’ and contained a table setting out each piece of evidence that supported the two tendencies and a footnote stating that ‘each charged act was cross-admissible and each uncharged act was admissible in proof of each charged act’. ([84]).

The joint judgment also made general remarks (at [86]) about the direction to be given in single complainant cases:

Where evidence is admitted on that basis, the trial judge should direct the jury that the Crown argues that the evidence establishes that the accused had a sexual interest in the complainant and a tendency to act upon it which the Crown contends makes it more likely that the accused committed the charged offence or offences. If the Crown also relies on the evidence as putting the charged offence or offences in context in some other identified fashion or respects, the trial judge should further direct the jury that the Crown contends that the evidence serves also to put the charged offence or offences in context and identify the manner or respects in which the Crown contends that it does so. The trial judge should stress that the evidence of uncharged acts has been admitted for those purposes and, if the jury are persuaded by it, that it is open to the jury to use the evidence in those ways, although no other. The trial judge should further stress that it is not enough, however, to convict the accused that the jury may be satisfied of the commission of the uncharged acts or that they establish that the accused had a sexual interest in the complainant on which the accused had acted in the past; it remains that the jury cannot find the accused guilty of any charged offence unless upon their consideration of all of the evidence relevant to the charge they are satisfied of the accused’s guilt of that offence beyond reasonable doubt.

However, as in Victoria, judges in NSW ‘should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt.’

In relation to evidence that the complainant described the accused’s offending to a school friend in 1998, the joint judgment held (at [89]-[94]) that the evidence satisfied the ‘fresh in the memory test’ in s66 of the uniform evidence law. Since that section was amended to insert a new sub-s(2A) in response to the High Court’s earlier decision in Graham v The Queen [1998] HCA 61, ‘it has rightly come to be accepted by intermediate courts of appeal that the nature of sexual abuse is such that it may remain fresh in the memory of a victim for many years’. In this case, the evidence was that the complainant identified a number of specific acts, albeit not their timing, in some cases in response to leading questions and with some inconsistencies with prior and later accounts (matters that go the weight of the evidence, not its admissibility); ‘given the nature of the sexual acts alleged, the fact that they were repeated time and again over a period of years, the fact that it seems they continued up to less than a year before the conversation… and [the complainant’s] highly emotional state at the time of the conversation…  it is very probable that the events disclosed… were vivid in [her] recollection at the time of the conversation and would remain so for years to come’ ([92]). In contrast to a case where there was only one charged act, the generality of the complaint ‘was confirmatory of [her] testimony that the respondent offended against her frequently throughout the 11 years and thereby confirmatory of the existence of the respondent’s sexual attraction to [her] and his tendency to act upon it over that period of time by offending against her as the occasion presented.’ ([97]). Neither the leading questions at the time of the complaint nor the witness’s lack of independent recollection of the wording at the trial was so great as to merit the complaint’s exclusion on the basis of prejudicial effect ([99]-[100]).

Accordingly, the joint judgment upheld the appeal and ordered that the defendant’s appeal against his 18 convictions should have been dismissed.