Citation: Regina v John David Veitch [1999] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 14 July 1999
Judge(s): Abadee J, Ireland J, Barr J
Background
The appellant was a stepfather convicted in the Newcastle District Court on three counts of sexual intercourse (penile/anal intercourse) with his stepson, who was aged 14 to 15 at the time of the alleged offences. The offences were charged under s 66C(2) of the Crimes Act 1900 and were said to have occurred between June 1987 and December 1988. The appellant had separately pleaded guilty to three offences of a similar nature against his stepdaughter, and those convictions were not the subject of the appeal.
The Crown case rested entirely on the evidence of the complainant, described as a slow learner with developmental delay. The complainant gave evidence of five occasions on which the appellant had engaged in penile/anal intercourse with him, although only three of those occasions formed the basis of the charges on the indictment.
The appellant denied all allegations and gave evidence. He was convicted on all three counts and sentenced to a minimum term of six years penal servitude with an additional term of two years, to be served concurrently across all six counts from both indictments.
Legal Issues
- Whether evidence of the two uncharged sexual acts (beyond the three charged offences) was properly admitted and properly characterised as either "relationship evidence" or "tendency evidence"
- Whether the Crown made its purpose in tendering that evidence sufficiently clear
- Whether the trial judge gave appropriate directions to the jury about the limited purposes for which that evidence could be used
- Whether the verdict was unsafe and unsatisfactory given that the Crown case depended entirely on the complainant's evidence
Decision
The critical ground of appeal concerned the evidence of two occasions of sexual intercourse that were not the subject of any charge. The complainant had told the jury about five incidents in total. The Court found that the purpose for which this additional evidence was adduced was never made clear by the Crown, and no adequate direction was given to the jury about how they could and could not use it.
The Court observed that such evidence may be admissible as relationship evidence or as tendency evidence under ss 97, 98 and 101 of the Evidence Act 1995, but the applicable rules and limitations differ depending on which characterisation applies. Because the purpose was left unresolved at trial, the jury received no proper guidance on how to treat this evidence. The Court noted that no reference was made at trial to the provisions of the Evidence Act or relevant authority, and that the relevant Court of Criminal Appeal decision (R v AH) had been published only on the day the summing-up was delivered.
Ireland J, with whom Abadee J and Barr J agreed, concluded that a significant error had occurred in the conduct of the trial. The absence of a clear Crown position on the purpose of the evidence, combined with the absence of corresponding jury directions, constituted a material error that could not be overlooked.
On the separate ground that the verdict was unsafe and unsatisfactory, the Court declined to intervene. It found that the jury had been entitled to accept the complainant's evidence and reject the appellant's denials, and that the evidence did not disclose the kind of discrepancies or inadequacies that would raise a significant possibility that an innocent person had been convicted, applying M v The Queen (1994) 181 CLR 487.
Orders Made
- Appeal allowed
- Conviction and sentence quashed
- New trial ordered
The Court also noted that the appellant's separate application for leave to appeal his sentence on the stepdaughter offences (on the basis that those sentences had been structured by reference to the totality of criminality including the stepson offences) should await the outcome of the new trial.
Key Takeaways
- Where a complainant gives evidence of uncharged acts in addition to the charged offences, the Crown must identify with clarity whether that evidence is tendered as relationship evidence or tendency evidence, as the admissibility requirements and jury directions differ significantly between the two.
- The Court of Criminal Appeal confirmed that the failure to clarify the purpose of such evidence, combined with the absence of proper limiting directions to the jury, constitutes a material trial error capable of vitiating a conviction.
- Under ss 97, 98 and 101 of the Evidence Act 1995, distinct rules govern tendency evidence and coincidence evidence; a trial judge's directions to the jury must correspond to whichever basis has been established for the evidence's admission.
- A verdict is not unsafe and unsatisfactory merely because the Crown case depends entirely on the complainant's account, provided the jury could rationally accept that evidence and the evidence does not exhibit the inadequacies described in M v The Queen (1994) 181 CLR 487.
- Sentence appeals in related proceedings may be deferred where a new trial has been ordered, particularly where the original sentence was structured on a totality basis that included the quashed convictions.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 66C(2), 409B(3)(b)
- Evidence Act 1995 (NSW), ss 97, 98, 101
Cases
- R v AH (1997) NSWLR 702
- Graham v The Queen (1998) 72 ALR 1491
- R v Beserick (1993) 30 NSWLR 510
- B v The Queen (1992) 175 CLR 599
- R v Ball [1911] AC 47
- Pfenning v The Queen (1995) 182 CLR 461
- R v Harvey (NSWCCA, 11 December 1996, unreported)
- R v Lockyer (1996) 89 A Crim R 457
- R v Lock (1997) 91 A Crim R 536
- Harriman v The Queen (1989) 167 CLR 590
- S v The Queen (1989) 168 CLR 266
- R v Foley (NSWCCA, 5 June 1996, unreported)
- M v The Queen (1994) 181 CLR 487