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Court of Criminal Appeal 20 December 2002

Regina v Eyles

[2002] NSWCCA 510

Sexual offences
HIGHLY PREJUDICIAL INADEQUATE WARNING BY JUDGE

Citation: Regina v Eyles [2002] NSWCCA 510
Court: New South Wales Court of Criminal Appeal
Date: 20 December 2002
Judge(s): Handley JA, Dowd J, Smart AJ

Background

The appellant was convicted in the District Court on six counts of sexual offences against two young girls, JZ and LG, arising from alleged incidents in early 1982. The complainants were children aged approximately seven and eight at the time of the alleged offending. The appellant denied that any of the alleged events had occurred.

The trial ran over seven sitting days in May 1999. Notably, the jury acquitted the appellant of five further counts relating to JZ, and the trial judge directed an acquittal on a twelfth count. The appellant was not sentenced until December 2000, pending resolution of other proceedings. He lodged his appeal in April 2001, slightly out of time, but the Court of Criminal Appeal granted an extension on the basis that there were substantive matters to argue and the delay was explained by a mistaken belief that his barrister had lodged the appeal.

The appeal raised multiple grounds, including the erroneous admission of tendency evidence, improper leave granted to cross-examine a Crown witness, inadequate directions, and the contention that the verdicts were unreasonable and not supported by the evidence.

  • Whether tendency evidence was incorrectly admitted because the trial judge applied the wrong legal test
  • Whether the warning given to the jury about that tendency evidence was adequate
  • Whether the Crown was improperly granted leave under section 38 of the Evidence Act 1995 to cross-examine one of its own witnesses
  • Whether the verdicts on counts 1 to 6 were unreasonable or not supported by the evidence, having regard to the acquittals on related counts and the overall quality of the evidence
  • Whether a new trial should be ordered if the convictions were quashed

Decision

The Court of Criminal Appeal found that tendency evidence had been incorrectly admitted at trial because the wrong test had been applied. That evidence was characterised as highly prejudicial. Compounding the error, the trial judge's warning to the jury about the tendency evidence was inadequate. The Court found that the evidence of witnesses Cebula, KZ and LJS was inadmissible on this basis.

Smart AJ conducted a detailed examination of the admissible evidence and identified significant inconsistencies between the accounts given by JZ and LG. The two complainants gave materially different versions of the alleged joint encounter. Questions also arose about timing: if LG's account of seeing a doctor shortly after the relevant events was accurate, the incidents would have had to occur before 9 January 1982, which was inconsistent with other evidence that they occurred on a school afternoon.

The Court applied the test from M v The Queen (1994) 181 CLR 487, as further explained in MFA v The Queen [2002] HCA 53, to assess whether the verdicts were unreasonable. Smart AJ concluded that it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on any of the six counts. The quality of the evidence was described as poor, and the Court expressed serious doubt that the jury would have convicted without the incorrectly admitted evidence and the faulty directions.

The Court declined to order a new trial. Several factors contributed to that conclusion: the lengthy delay between the alleged offending in 1982 and the complaints (JZ did not complain until 1996 and LG had to be approached by police in 1998), the unavailability of some witnesses, destroyed evidence, and the resulting difficulty for the appellant in mounting an adequate defence.

Orders Made

  • Time extended for the appellant to appeal against his convictions
  • Appeal against convictions on counts 1 to 6 allowed; convictions quashed; verdicts of acquittal entered
  • No new trial ordered

Key Takeaways

  • Tendency evidence admitted on the wrong legal test, and accompanied by an inadequate jury warning, constituted significant error sufficient to vitiate the convictions.
  • Where inadmissible tendency evidence is highly prejudicial and the admissible evidence is of poor quality, an appellate court may conclude that the jury's verdicts were unreasonable and not supported by the evidence.
  • Acquittals on related counts forming part of the same trial can be relevant when assessing whether guilty verdicts on other counts are reasonably open on the evidence.
  • The Court of Criminal Appeal confirmed that a new trial will not automatically follow the quashing of convictions; factors such as extreme delay, unavailability of witnesses, destroyed evidence, and the resulting prejudice to the accused are all relevant to that discretion.
  • Under the M v The Queen and MFA v The Queen framework, an appellate court conducting its own assessment of the evidence may enter verdicts of acquittal where it is not reasonably open to the jury to be satisfied of guilt beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), including section 38

Cases
- R v Johnson (1998) 45 NSWLR 362
- R v BWT [2002] NSWCCA 60
- R v SJB [2002] NSWCCA 163
- Longman v The Queen (1989) 168 CLR 79
- Crampton v The Queen [2000] HCA 60; 75 ALJR 133
- Doggett v The Queen [2001] HCA 46; 76 ALJR 1290
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53