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Court of Criminal Appeal 25 August 2000

R v Martin

[2000] NSWCCA 332

Sexual offences
CRIMINAL LAW & PROCEDURE APPEAL AGAINST CONVICTION SEXUAL ASSAULT MISTAKEN IDENTITY BY VICTIM "WITHHELD" EVIDENCE COUNSEL'S INCOMPETENCE

Citation: Martin v R [2000] NSWCCA 332
Court: NSW Court of Criminal Appeal
Date: 25 August 2000
Judges: Fitzgerald JA, Smart AJ, Ireland AJ

Background

The appellant was convicted in the District Court at Lismore on three counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900. The offences occurred during a single incident on 15 May 1997 at a backpacker lodge in Byron Bay, where the appellant entered the complainant's bed while she slept. The complainant initially mistook the appellant for her boyfriend and did not resist; she only realised her error part-way through the encounter and ordered the appellant to leave.

A central issue at trial was whether the appellant knew, or was at least recklessly indifferent to whether, the complainant was not consenting to him. The prosecution led evidence from another witness, Ms M, about conduct the appellant had directed towards her shortly before the offences against the complainant. The appellant was unrepresented on appeal.

The jury convicted on all three counts. The sentences imposed were notably lenient, as Fitzgerald JA observed in his reasons.

  • Whether the trial judge correctly admitted the tendency or coincidence evidence of Ms M under ss 97, 98, and 101 of the Evidence Act 1995
  • Whether Ms M's evidence had "significant probative value" that substantially outweighed its prejudicial effect, as required by s 101(2)
  • Whether trial counsel's conduct amounted to incompetence warranting a ground of appeal
  • Whether the complainant's mistaken identity provided a basis to disturb the convictions

Decision

The court dismissed the appeal on all grounds. The central controversy concerned the admissibility of Ms M's evidence. She gave evidence that, shortly before the offences against the complainant, the appellant made sexual advances towards her, then touched her genitals while she was asleep, exposed himself, and later attempted to get into her bed after she had rebuffed him. The trial judge admitted this evidence as having "substantial probative value" on the appellant's state of mind regarding the complainant's consent.

While all three judges agreed the evidence was correctly admitted, Fitzgerald JA considered the trial judge's stated reasons too broadly framed. His Honour clarified that the evidence was admissible because of the specific and precise issue it could rationally affect: whether the appellant cared whether the complainant was consenting to penetration. That narrower framing better reflected the proper application of the significant probative value test under the Evidence Act.

Smart AJ added a further observation. The conduct directed at Ms M did not reach the stage of digital, oral, or penile penetration, but the similarity lay in the appellant getting into the bed of a sleeping or semi-sleeping woman and touching her in the area of the vagina. Given that the appellant was naked and had an erection, the jury could reasonably conclude he was intent on intercourse regardless of consent. Smart AJ noted that had the evidence only supported a conclusion of indecent assault, he would not have regarded it as admissible.

Ireland AJ, who set out the full background and dealt with each ground of appeal, accepted the Crown's submission that Ms M's evidence also rebutted the appellant's recorded claim that he had no intention of having sexual intercourse with anyone that evening. The identical method adopted with both women, within a short period, was directly relevant to his state of mind and reckless indifference to consent.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Tendency and coincidence evidence under ss 97, 98, and 101 of the Evidence Act 1995 is admissible only where it has "significant probative value" that substantially outweighs its prejudicial effect; the probative value depends on the extent to which the evidence could rationally affect the probability of a specific fact in issue.

  • In dismissing the appeal, the Court of Criminal Appeal emphasised the importance of precision when identifying exactly which fact in issue the prior conduct evidence bears upon, rather than admitting it broadly on "state of mind."

  • The "significant probative value" threshold requires something more than mere relevance but something less than a substantial degree of relevance, following R v Lockyer (1996) 89 ACrimR 457.

  • Where prior conduct evidence is capable of supporting only the conclusion of a less serious offence (such as indecent assault rather than an intent to commit sexual intercourse), Smart AJ indicated it may not meet the admissibility threshold.

  • A mistaken belief by the complainant as to the identity of the perpetrator does not, of itself, establish that the perpetrator believed consent was given; the relevant question is whether the accused knew, or was recklessly indifferent to whether, the complainant was consenting to him specifically.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Evidence Act 1995 (NSW), ss 97, 98, 101

Cases
- Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171
- Perry v The Queen (1982) 150 CLR 580
- Pfennig v The Queen (1995) 182 CLR 461
- Hoch v The Queen (1988) 165 CLR 292
- R v Lockyer (1996) 89 ACrimR 457
- R v Player [2000] NSWCCA 123