Citation: Regina v AB [2001] NSWCCA 496
Court: Court of Criminal Appeal, New South Wales
Date: 15 November 2001
Judge(s): Spigelman CJ, Sully J, Adams J (reasons delivered by Adams J)
Background
The appellant was convicted in the District Court on six counts of homosexual intercourse with a child. The complainant was distantly related to the appellant and had lived with the complainant's family from 1985. The Crown alleged that the six charged acts were representative of a continuing pattern of sexual abuse spanning roughly six years, from when the complainant was 10 years old to when he was 16.
To support its case, the Crown relied on three categories of evidence: the uncharged sexual acts (as relationship or context evidence), admissions the appellant made to the complainant's family, and the same uncharged conduct framed as tendency evidence. It was the third category that gave rise to the principal ground of appeal.
On sentence, Judge Gibson QC DCJ imposed terms that the appellant also challenged as manifestly excessive. The Court of Criminal Appeal heard both appeals together.
Legal Issues
- Whether the Crown's tendency notice complied with Regulation 6 of the Evidence Regulations 1995 where, instead of setting out the required particulars in the notice itself, the notice referred to separately served statements containing those particulars
- Whether, if the tendency evidence was wrongly admitted, the conviction had miscarried
- Whether the sentence imposed was manifestly excessive
Decision
On the tendency notice: Adams J held that the notice did comply, in substance, with Regulation 6. The critical question was whether the regulation required all particulars to appear within the four corners of the notice document, or whether it was sufficient to identify and incorporate by reference an extrinsic document already served on the accused. The Court accepted the latter approach. The statements were specifically identified in the notice and had been properly served on the defence in the ordinary course of proceedings.
The appellant conceded that had the statements been physically reproduced within the notice, there would have been sufficient compliance. In those circumstances, Adams J was not persuaded that inserting a reference to those same documents, rather than copying them in full, constituted a failure to comply. The notice gave the accused all the information the regulation intended to convey.
On admissibility of the uncharged conduct as tendency evidence: The Court confirmed that evidence of the broader pattern of sexual conduct between the appellant and the complainant was clearly admissible as relationship or context evidence. To the extent that same material was also used to establish a "guilty passion" directed toward the complainant, it attracted the tendency provisions of s 97 of the Evidence Act 1995. Because the notice was found to be compliant, the evidence was properly admitted on that basis as well.
On sentence: Adams J was satisfied that the sentences imposed were appropriate given the seriousness of the offending, the age of the complainant at the time of the first offence, and the abuse of trust involved. Even if there were any technical departure from the principles in Pearce v The Queen regarding cumulation and concurrence, the overall sentence was not manifestly excessive when totality was considered.
Orders Made
- Leave to appeal against sentence granted
- Conviction appeal dismissed
- Sentence appeal dismissed
Key Takeaways
- A tendency notice under s 97 of the Evidence Act 1995 may incorporate by reference an extrinsic document, such as a statement already served on the accused, rather than reproducing all required particulars within the notice itself, provided the document is specifically identified.
- Regulation 6 of the Evidence Regulations 1995 requires that the substance of the tendency evidence and relevant particulars be conveyed to the accused; the Court of Criminal Appeal treated this as a substantive rather than purely formal requirement.
- Where uncharged sexual conduct is admissible as relationship evidence, a court may also treat that same evidence as tendency evidence to establish something analogous to a "guilty passion," subject to the notice requirements of s 97 being met.
- Wrongly admitting tendency evidence, had that conclusion been reached, would have been sufficient to constitute a miscarriage of trial; the Court confirmed this principle even while dismissing the appeal on the facts.
- In sentencing for multiple serious sexual offences against a child, the Court confirmed that the age of the complainant at the time of the earliest offending and the abuse of an adult's position of trust are significant factors bearing on the appropriate head sentence.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 97 (tendency rule), s 98 (coincidence rule), s 99
- Evidence Regulations 1995 (NSW), Regulation 6
Cases:
- AN (2000) 117 A Crim R 176
- Hoch v The Queen (1988) 165 CLR 292
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610