Citation: R v F [2002] NSWCCA 125
Court: NSW Court of Criminal Appeal
Date: 9 April 2002
Judge(s): Meagher JA; Wood CJ at CL; Bell J
Background
The accused, a former school gym teacher, was charged with the indecent assault of five former pupils. Following representations by the defence, the Crown originally consented to separate trials on each set of charges, with matters listed as back-to-back hearings at Wagga Wagga. No formal severance order was ever made, and the first trial ended in acquittals after the Crown presented no evidence.
Days before the remaining four trials were due to commence in Sydney, the Crown reversed its position and filed a motion seeking a joint trial. It also served notices of intention to rely on each complainant's evidence as tendency and coincidence evidence against the accused on all counts. The trial judge, Hock DCJ, ruled that the complainants' evidence was sufficiently similar to qualify as tendency and coincidence evidence, but found a reasonable possibility of concoction in relation to one complainant (JPMcF), ordering his trial to proceed separately.
The Crown appealed that ruling to the Court of Criminal Appeal. The respondent (the accused) was also granted leave to cross-appeal, seeking separate trials for all complainants.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction under s 5F of the Criminal Appeal Act 1912 to hear the Crown's appeal of a pre-trial joinder and severance ruling
- Whether the respondent should be granted leave to appeal, given the Crown's change of position during proceedings
- Whether the complainants' evidence satisfied the requirements for admissibility as tendency or coincidence evidence under the Evidence Act 1995
- Whether the possibility of concoction had been sufficiently excluded in relation to each complainant to permit joinder of their trials
- Whether the trial of JPMcF should be heard separately from the remaining complainants
Decision
The Court confirmed jurisdiction to hear the Crown's appeal under s 5F of the Criminal Appeal Act 1912. The joinder and severance question was at the heart of the pre-trial hearing, and the character and effect of the judge's ruling brought it within the scope of that provision.
On the question of leave for the respondent's cross-appeal, the Court accepted that the Crown's reversal of its earlier consent to separate trials created a fairness concern. Leave was granted, but confined to the joinder and severance issue, which turned on the admissibility of the tendency and coincidence evidence.
On admissibility, the Court upheld Judge Hock's ruling. The alleged conduct across the four complainants was substantially and relevantly similar in both its nature and the circumstances in which it occurred. The existence of those similar acts was not amenable to an innocent explanation, their probative value was significant, and that probative value substantially outweighed any prejudicial effect on the accused. Critically, the possibility of joint concoction was found to be excluded for three of the complainants. Although they attended the same school, they were of different ages and had no reason to socialise together, making coordinated fabrication objectively unlikely.
JPMcF presented a different situation. One of the other complainants had disclosed an indecent assault to JPMcF before JPMcF made any complaint of his own, and JPMcF acknowledged some awareness of similar allegations against the accused. His first formal complaint followed a newspaper article about the matter. The Court found no error in the trial judge's conclusion that these circumstances gave rise to a reasonable possibility that JPMcF's evidence had been tainted, and confirmed that his trial should proceed separately.
Orders Made
- Crown appeal dismissed
- Leave to appeal granted to the respondent, but appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that pre-trial rulings concerning joinder and severance are reviewable under s 5F of the Criminal Appeal Act 1912 where the character and effect of the decision warrants it.
- A reasonable possibility of concoction is not established merely because complainants attended the same institution. Where complainants were of different ages with no established social connection, that possibility may properly be excluded.
- Where one complainant received prior disclosure of another complainant's allegation before making a complaint, and later complaints followed media coverage, those circumstances can amount to a reasonable possibility of tainted evidence, warranting a separate trial.
- Tendency and coincidence evidence may be admissible where the alleged conduct is substantially similar in both character and circumstances, its probative value is significant, and that probative value substantially outweighs any prejudicial effect on the accused.
- In dismissing both the Crown appeal and the respondent's cross-appeal, the Court left undisturbed the trial judge's ruling that three complainants' trials should proceed jointly while the fourth proceeded separately.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 97, 98
Cases:
- Hoch v The Queen (1988) 165 CLR 292
- Sutton v The Queen (1984) 152 CLR 528
- Pfennig v The Queen (1995) 182 CLR 461
- BRS v The Queen (1997) 191 CLR 275
- Gipp v The Queen (1998) 194 CLR 106
- KRM v The Queen (2001) 75 ALJR 550
- De Jesus v The Queen (1986) 61 ALJR 1
- R v Colby [1999] NSWCCA 261
- Regina v OGD (No 2) [2000] NSWCCA 404
- R v Steffan (1993) 30 NSWLR 633
- R v Powch (1988) 14 NSWLR 136
- R v Bozatis and Spanakakis (1997) 97 A Crim R 296
- R v Saunders (1994) 72 A Crim R 355
- R v Georgiou (1999) NSWCCA 125
- R v Lockyer (1996) 89 A Crim R 457
- R v Lock (1997) 91 A Crim R 356
- R v Bailey (1988) 36 A Crim R 633
- R v Rogerson (1990) 45 A Crim R 253
- The King v Snow (1915) 20 CLR 315
- Regina v AH (1997) 42 NSWLR 702