Citation: Regina v Kehoe; Regina v Otto [2001] NSWCCA 192
Court: NSW Court of Criminal Appeal
Date: 18 April 2001
Judge(s): Handley JA; Ipp AJA; Greg James J
Background
Two accused, a man and his de facto partner, were convicted following a District Court jury trial at Port Macquarie on charges of a sexual nature involving three girls. The charges included counts arising from an alleged incident in the back of a van and additional counts involving one of the girls alone. The events were said to have occurred up to six and a half years before the trial.
At the trial, background evidence was led from the three complainants about the nature of their relationship with the accused. A significant element of that evidence was each girl's account that, on one occasion, the male accused had incited them to perform a particular act involving the lowering of their clothing and presenting their buttocks to a video camera. Each girl maintained in cross-examination that this had occurred only once and had been instigated by the male accused.
After the first trial and during a second trial of the male accused on further related counts, a video recording was discovered by accident at the home. That video showed the three girls, along with another girl and without any involvement by the male accused, performing exactly the act they had described at trial. The male accused had denied any involvement in the incident, and the video entirely vindicated his account.
Legal Issues
- Whether the discovered video constituted admissible fresh evidence capable of grounding an appeal against the first-trial convictions
- Whether, in light of that fresh evidence, the convictions on the counts relating to the van incident were unsafe and unsatisfactory
- Whether the remaining counts involving the complainant AP were also undermined by the fresh evidence
- Whether the male accused's conviction at the second trial on count six (digital penetration of one complainant) should be set aside
- Whether the male accused's conviction at the second trial on count ten (involving a different complainant, RB) was unsafe or unsatisfactory
- Whether the male accused was prejudiced at the second trial by the existence of his first-trial convictions, which allegedly prevented him from calling character evidence
Decision
The Court of Criminal Appeal held that the video was fresh evidence. The accused had no reason to search for or produce it, and it was discovered purely by accident. The recording was objective, independent, and incapable of direct challenge. It completely supported the male accused's evidence at the first trial and effectively destroyed the relevant evidence of the three complainants on the video incident.
Applying that finding, the Court concluded that no properly directed jury could have failed to have a reasonable doubt on the three counts arising from the van incident. The video demonstrated clearly that the complainants were either seriously mistaken or had deliberately lied when they implicated the male accused. The inconsistencies in the complainants' accounts of the van incident, combined with the lengthy delay before complaint and the absence of corroboration, reinforced that conclusion. Both appellants' convictions from the first trial were quashed and verdicts of acquittal entered.
The same reasoning extended to the remaining counts involving AP. Her evidence on those counts was uncorroborated, and the Court found that the video evidence so damaged her credibility that no properly directed jury could have failed to have a reasonable doubt about her account of those further offences.
On the second trial, the Court set aside the male accused's conviction on count six, which involved an allegation by KH of digital penetration while several people lay under bed clothes together. The other two girls present did not corroborate KH's account that the four of them were together in that situation, and the accused denied it entirely. The Court found the conviction on that count was unsafe. However, the conviction on count ten was upheld. That count involved a different complainant, RB, whose complaint was prompt, public, and corroborated in important respects by an independent witness. The Court was not persuaded that any prejudice from the prior convictions had infected the outcome on that count, particularly in the absence of affidavit evidence identifying the character evidence said to have been unavailable.
Orders Made
- Appeals by both appellants against their first-trial convictions allowed; convictions quashed and verdicts of acquittal entered on all counts from the first trial
- Appeal by the male accused against his conviction on count six at the second trial allowed; conviction quashed
- Appeal by the male accused against his conviction on count ten at the second trial dismissed
- The male accused re-sentenced to a fixed term of one month on count ten, commencing 24 August 1999
- The male accused ordered to be immediately released
Key Takeaways
- Fresh evidence on appeal need not have been deliberately withheld to qualify as fresh; evidence discovered by accident after trial, which the accused had no reason to search for, can satisfy the freshness requirement.
- Where fresh evidence is objective, independent, and wholly undermines the credibility of prosecution witnesses on a material issue, convictions dependent on those witnesses' accounts may be quashed as unsafe and unsatisfactory.
- The Court of Criminal Appeal confirmed that the damage to a complainant's credibility on one issue can flow through to the assessment of that complainant's evidence on other, separate counts, particularly where that evidence was uncorroborated.
- Not every conviction in a multi-count trial is necessarily tainted by fresh evidence discrediting some complainants: the conviction on count ten survived because it involved a different complainant whose evidence was corroborated and who had no connection to the discredited video evidence.
- A ground of appeal based on alleged prejudice from prior convictions preventing the calling of character evidence is unlikely to succeed without affidavit evidence identifying the specific evidence said to have been unavailable, and where no application was made to the trial judge to allow that evidence without triggering cross-examination on the prior convictions.
Legislation and Cases Referenced
No specific legislation or cases were cited in the metadata or in the portions of the judgment available for review.