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13
Court of Criminal Appeal 9 November 2000

R v A.N.

[2000] NSWCCA 372

Also reported as [2000] 117 A Crim R 176
Sexual offencesPublic order & justice offences
CRIMINAL PRACTICE & PROCEDURE RELATIONSHIP EVIDENCE LIMITS ON SUCH EVIDENCE

Citation: R v A.N. [2000] NSWCCA 372
Court: NSW Court of Criminal Appeal
Date: 9 November 2000
Judge(s): Priestley JA; Greg James J; Kirby J

Background

The appellant was convicted in two separate District Court trials of historical sexual offences. The charges in the first trial arose from allegations by his stepdaughter concerning conduct said to have occurred in the 1950s, when she was a child. The second trial concerned allegations made by his step-granddaughter.

Both trials were heard before the same judge, Gibson DCJ, with different juries. In each trial, the Crown sought to admit evidence of the appellant's sexual conduct on occasions other than those specifically charged. This evidence was put forward on two bases: as tendency evidence under the Evidence Act 1995, and as relationship evidence providing context for the charged offences.

The appellant was convicted in both trials and sentenced to a total of nine years penal servitude, with a minimum term of seven years, plus additional fixed terms. He appealed both convictions, and the Court of Criminal Appeal allowed the appeals at the conclusion of oral argument, ordering new trials. The reasons for that order were subsequently published in this judgment.

  • Whether the Crown's notice under section 97(1) of the Evidence Act 1995 was sufficient to permit the admission of tendency evidence
  • Whether the trial judge's directions to the jury on tendency evidence were adequate
  • Whether evidence of uncharged sexual conduct could validly be admitted as "relationship evidence" and, if so, whether a jury could realistically be directed to use it only for that limited purpose
  • Whether there was sufficient evidence on count one of the second trial to warrant a new trial rather than an acquittal

Decision

The central problem in both trials was the admission of tendency evidence without a valid notice under section 97(1) of the Evidence Act 1995. The statutory requirement for prior notice is a precondition to admissibility. The notice relied upon by the Crown was defective, and this error infected both trials.

In addition to the notice problem, the trial judge's directions to the jury on tendency evidence were held to be inadequate. The summing up did not properly instruct the jury as to which evidence was available for which purpose on each individual count. In the second trial, the judge also misstated the evidence during the summing up, producing a direction more adverse to the appellant than the evidence justified.

Kirby J, with whom Priestley JA agreed in full, also addressed the relationship evidence question. His Honour considered the circumstances in which uncharged sexual conduct may be admitted as "relationship evidence" to provide context, and the directions required when such evidence is admitted on that basis, drawing on the principles in R v MM [2000] NSWCCA 78.

Greg James J expressed reservations about the relationship evidence analysis. His Honour questioned whether a jury could realistically be expected to confine its use of the uncharged conduct evidence to the limited purpose of understanding the relationship, rather than treating it as proof of a propensity to offend. He left open for a future case whether the concepts of "relationship", "context", and "guilty passion" require reconsideration in light of the Evidence Act 1995, but agreed the appeals should be upheld on the narrower tendency evidence grounds.

On the application for acquittal on count one of the second trial, Kirby J declined to order an acquittal. His Honour found there was sufficient evidence, including the complainant's brother's account of the appellant's actions and the complainant's reaction, from which a properly instructed jury could infer the relevant physical act beyond reasonable doubt.

Orders Made

  • Appeals allowed in respect of each count in both trials
  • Convictions in each case quashed and sentences set aside
  • New trial ordered in respect of all counts

Key Takeaways

  • Compliance with the notice requirement under section 97(1) of the Evidence Act 1995 is a precondition to the admission of tendency evidence; a defective notice cannot support admissibility regardless of whether objection is taken to its adequacy at trial.
  • Where both tendency evidence and relationship evidence are admitted, the trial judge must direct the jury clearly on the different purposes for which each piece of evidence may be used in relation to each separate count.
  • Greg James J raised, but did not resolve, a significant question about whether juries can realistically comply with directions limiting the use of uncharged sexual conduct to relationship or context purposes only, signalling that this issue may warrant reconsideration in an appropriate future case.
  • A misstatement of evidence in a summing up, even where the judge lacked access to a daily transcript, constitutes a ground for a new trial where the inaccuracy is materially adverse to the accused.
  • Sufficient evidence to support a count may exist even where the specific physical act is not described in direct terms by the complainant, provided the totality of the evidence permits the inference required beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), sections 73, 76
- Evidence Act 1995 (NSW), sections 97(1), 98, 99, 101(1) and (2), 135, 137, 190(2)
- NSW Evidence Regulations

Cases
- R v MM [2000] NSWCCA 78
- Gipp v The Queen (1998) 194 CLR 106
- Harriman v The Queen (1989) 167 CLR 590
- R v Beserick (1993) 30 NSWLR 510
- R v Wilson (1970-71) 123 CLR 334
- R v Bond [1906] 2 KB 389
- R v Bradley (1989) 41 A Crim R 297
- R v Lockyear (1989) 89 A Crim R 457
- R v Fordham (1995) 90 A Crim R 359