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13
Court of Criminal Appeal 13 October 2000

R v OGD No 2

[2000] NSWCCA 404

Also reported as (2000) 50 NSWLR 433
Sexual offences
ONE ALLEGED VICTIM EVIDENCE OF ADMISSION BY APPELLANT APPELLANT RAISES CHARACTER CROSS EXAMINATION TENDENCY EVIDENCE

Citation: R v OGD No 2 [2000] NSWCCA 404
Court: NSW Court of Criminal Appeal
Date: 13 October 2000
Judge(s): Mason P, Simpson J, Dowd J

Background

The appellant was tried in the District Court on eleven sexual offences against a single complainant, his nephew, who was aged between twelve and seventeen at the time of the alleged offending. The offences were said to have occurred between June 1990 and January 1995 and included multiple counts of homosexual intercourse with a male under eighteen and one count of sexual intercourse without consent. The jury returned guilty verdicts on ten of the eleven counts, acquitting the appellant on one count of homosexual intercourse.

Judge Solomon sentenced the appellant to nine years and one month imprisonment (with a minimum term of six years and one month) on the most serious count, and four years and one month on each other count, all to be served concurrently from April 1999.

The appellant appealed against each conviction and sought leave to appeal against sentence.

  • Whether evidence of an admission by the appellant was properly admitted
  • Whether tendency evidence (evidence of similar conduct with other alleged victims) was admissible under the Evidence Act 1995, particularly in light of Hoch v R (1988) 165 CLR 292
  • Whether the trial judge's directions on character evidence were adequate, after the appellant chose to raise his character
  • Whether the jury's verdicts were inconsistent, given the single acquittal among the otherwise guilty verdicts

Decision

Tendency evidence and the Hoch principle
The Court examined whether the pre-Evidence Act 1995 principle from Hoch v R, which required courts to assess whether there was a reasonable possibility of concoction or contamination before admitting similar fact evidence, survived the enactment of the Evidence Act 1995. The Court confirmed that the tendency evidence provisions of the Act now govern this area in New South Wales, and that the Hoch framework does not operate as an independent threshold requirement under the statutory regime. The relevant question under the Act is whether the tendency evidence has significant probative value that outweighs the danger of unfair prejudice.

Character evidence directions
When the appellant raised his character, this opened the door to cross-examination and to evidence concerning similar conduct allegedly committed against two other individuals. The Court found that the trial judge's directions adequately guided the jury on the limited purposes for which that material could be used, and that no appealable error was established in those directions.

Inconsistent verdicts
The appellant argued that his acquittal on one count was logically inconsistent with the guilty verdicts on the remaining counts. The Court rejected this argument. The complainant's own evidence on the count resulting in acquittal was notably different: the complainant frankly acknowledged he could not clearly recall the specific incident and that some events were confused in his mind. The Court found this candour actually supported the complainant's overall credibility rather than undermining it, and that the acquittal was explicable without casting doubt on the remaining convictions. The situation was therefore distinguishable from cases such as R v Jones (1998) 191 CLR 439, where an acquittal could not rationally be separated from the credibility findings underpinning the other counts.

Sentence
No written or oral submissions were advanced in support of the sentence appeal. The Court considered the sentences of its own motion and concluded they were well within the available range.

Orders Made

  • Appeal against conviction refused
  • Leave to appeal against sentence refused

Key Takeaways

  • The Hoch v R concoction or contamination test does not operate as a freestanding threshold requirement in New South Wales proceedings governed by the Evidence Act 1995; tendency evidence is assessed under the Act's own framework of significant probative value weighed against unfair prejudice.
  • A single acquittal does not automatically create a verdict inconsistency requiring the conviction verdicts to be set aside; the court examines whether the acquittal is rationally explicable by reference to the specific evidence on that count.
  • Where a complainant's frank acknowledgement of impaired recollection on one count actually enhances their credibility overall, that acquittal will not be treated as raising a doubt about the reliability of the complainant's evidence on other counts.
  • In dismissing the sentence appeal, the Court of Criminal Appeal noted that concurrent sentences across multiple serious sexual offences may still fall within the acceptable range where the overall structure reflects the totality of the offending.
  • A tendency evidence ruling will not be overturned on appeal merely because the evidence involved alleged conduct with persons other than the complainant named in the indictment, provided the statutory requirements for admission are met.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- Hoch v R (1988) 165 CLR 292
- R v Pfennig (1995) 182 CLR 461
- BRS v R (1997) 191 CLR 275
- R v Jones (1998) 191 CLR 439
- R v Colby [1999] NSWCCA 261
- R v Vinh Le [2000] NSWCCA 49
- R v TKWJ [2000] NSWCCA 246
- R v BD (1997) 97 A Crim R 131
- R v ACK (NSWCCA, 22 April 1996, unreported)
- Wheeler v R (NSWCCA, 16 November 1989, unreported)