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Court of Criminal Appeal 31 March 2000

Regina v GLC

[2000] NSWCCA 90

Sexual offences
CRIMINAL LAW CRIMINAL PROCEDURE RULES.

Citation: Regina v GLC [2000] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 31 March 2000
Judge(s): Sully J, Simpson J, Carruthers AJ

Background

The applicant faced three counts on an indictment: two counts of sexual intercourse with a complainant (TH) between 1988 and 1989 when she was aged between 10 and 16, and one count of indecent assault on a second complainant (CVG) in 1992 to 1993 when she was nine years old. The prosecution gave notice approximately three weeks before trial that it intended to rely on tendency and coincidence evidence under ss 97 and 98 of the Evidence Act 1995, meaning the evidence of each complainant would be led across all counts.

The applicant filed a motion seeking separate trials for the counts relating to each complainant. When that motion was heard in the Nowra District Court, the Crown called TH on a voir dire to address whether the two complainants knew each other or had any opportunity to concoct their accounts. The second complainant was interstate and could not be called. District Court Judge Garling ultimately refused the application for separate trials, proceeding on the basis that there was no evidence of concoction, while noting the issue might need to be revisited at trial.

The applicant then sought leave to appeal against that interlocutory ruling to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.

  • Whether leave to appeal against the interlocutory refusal of separate trials should be granted under s 5F of the Criminal Appeal Act 1912
  • Whether the Crown's proposed tendency and coincidence evidence under ss 97 and 98 of the Evidence Act 1995 satisfied the threshold prejudice test in s 101(2)
  • Whether the question of possible concoction between complainants was appropriately dealt with concurrently with the motion for separate trials, including the procedural regularity of taking voir dire evidence before the applicant had been arraigned
  • What the proper procedural vehicle is for resolving concoction questions in multi-complainant cases in the District Court

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, affirming Judge Garling's refusal of separate trials. The Court did not disturb the substantive finding that the proposed tendency and coincidence evidence had sufficient probative value to survive the s 101(2) threshold test, which requires that the probative value of the evidence not be substantially outweighed by its prejudicial effect.

However, the Court identified a procedural irregularity in how the concoction question had been handled. Under r 11 of Pt 53 of the Criminal Procedure Rules, a voir dire into the admissibility of evidence requires the accused to have first entered a plea. Because the applicant had not been arraigned (understandably, given the whole point of the motion was to seek separate indictments), taking voir dire evidence in those circumstances was procedurally inappropriate.

Beyond that specific irregularity, the Court expressed the broader view that questions of possible concoction between complainants should not be resolved concurrently with a separate trials application. Except in special circumstances, such questions belong before the trial judge, after arraignment and plea, using r 11 as the appropriate procedural vehicle.

The Court also noted that r 11 inquiries should not be embarked upon without sufficient justification, cautioning against applications that amount to fishing expeditions.

Orders Made

  • Application for leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that questions of possible concoction between complainants in multi-complainant sexual offence cases should ordinarily be resolved by the trial judge after arraignment, not determined concurrently with a pre-trial motion for separate trials.
  • Rule 11 of Pt 53 of the Criminal Procedure Rules provides the appropriate procedural framework in the District Court for voir dire inquiries into the admissibility of evidence, including concoction issues, but requires the accused to have pleaded to the indictment before the inquiry commences.
  • Taking voir dire evidence on a concoction question before the accused had been arraigned constituted a procedural irregularity, though in the circumstances of this case it had no practical consequence on the outcome.
  • In dismissing the appeal, the Court left intact the trial judge's substantive finding that the proposed tendency and coincidence evidence had sufficient probative value under the s 101(2) test.
  • A court should require sufficient justification before ordering a r 11 inquiry; applications that are exploratory or speculative in nature are to be discouraged.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 97 (Tendency Rule), 98 (Coincidence Rule), 101(2)
- Criminal Procedure Rules, Pt 53 r 11 (District Court Rules)

Cases
- Hoch v The Queen (1988) 165 CLR 292
- Regina v Lockyer (1996) 89 A Crim R 457
- Regina v Lock (1997) 91 A Crim R 356
- Regina v AH (1997) 42 NSWLR 702