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Court of Criminal Appeal 14 March 2002

R v McSmith

[2002] NSWCCA 68

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT MULTIPLE COUNTS CRIMINAL LAW EVIDENCE

Citation: R v McSmith [2002] NSWCCA 68
Court: NSW Court of Criminal Appeal
Date: 14 March 2002
Judge(s): Heydon JA, Dunford J, Buddin J

Background

The appellant was convicted in the District Court before Judge Morgan and a jury on three counts of assault with an act of indecency in circumstances of aggravation under s 61M of the Crimes Act 1900. The charges arose from allegations of improper touching of the nine-year-old daughter of the appellant's de facto wife. He was sentenced to concurrent terms of 18 months periodic detention with a 12-month non-parole period.

During the trial, the complainant unexpectedly gave evidence of additional incidents of sexual misconduct beyond the three charged counts. Separately, trial counsel sought to cross-examine the complainant about reports that had been tendered in Family Court proceedings, but the trial judge ruled that s 121 of the Family Law Act 1975 prohibited such cross-examination.

The appellant appealed both the convictions and the sentences, raising multiple grounds including errors in amending particulars, the admission of uncharged-acts evidence, the cross-examination ruling, and an asserted failure to raise good character evidence.

  • Whether the trial judge erred in permitting the Crown to amend the particulars attaching to certain counts and to substitute evidence between counts, rather than directing acquittal on count 2
  • Whether the jury should have been discharged after the complainant unexpectedly gave evidence of uncharged sexual assaults admitted as relationship (context) evidence
  • Whether s 121 of the Family Law Act 1975 prevented defence counsel from cross-examining the complainant on the content of reports from Family Court proceedings
  • Whether the failure to lead good character evidence (specifically, evidence that the appellant did not engage in inappropriate sexual activity with children) constituted a ground of appeal

Decision

Substitution of particulars between counts: The Court found no error of law in the trial judge permitting the Crown to treat the events in the order the complainant described them, rather than the order originally particularised. The counts were all in identical form, and only the dates were amended. Swapping the particulars between counts amounted to no more than an amendment of particulars rather than an amendment to the indictment itself. The appellant knew at an early stage which particulars attached to which count and suffered no prejudice. Accordingly, the Court declined to direct an acquittal on count 2 and ordered a new trial on counts 1, 2 and 3.

Discharge of jury following uncharged-acts evidence: The Crown conceded that once the complainant unexpectedly introduced evidence of other incidents, the application to discharge the jury should have been granted. Dunford J expressed reservations about that concession, observing that unexpected evidence of uncharged acts does not automatically justify discharge and may legitimately be admitted as background or context evidence. Nonetheless, the Court upheld the appeal on this ground in light of the concession and ordered a new trial.

Family Court cross-examination: The trial judge had ruled that s 121 of the Family Law Act 1975 barred cross-examination on the content of the Family Court reports. The Court noted that the material sought to be used in cross-examination may have been conference notes falling under s 62F(8), or alternatively that s 19N may have been relevant. Because the point would likely arise again at the new trial, the Court drew the parties' attention to these provisions but declined to give a final ruling on the issue.

Remaining grounds: The good character ground required no determination given the order for a new trial.

Orders Made

  • Appeal upheld
  • Convictions and sentences quashed
  • New trial ordered on counts 1, 2 and 3
  • Bail continued on existing conditions

Key Takeaways

  • Amending the particulars attached to counts in an indictment is not the same as amending the indictment itself; where the counts are in identical form and the accused suffers no identifiable prejudice, such amendment may be permissible without constituting an error of law.
  • Unexpected evidence from a complainant about uncharged acts of sexual misconduct does not automatically warrant discharge of the jury; such evidence may, depending on the circumstances, be admissible as relationship, background, or context evidence distinct from tendency evidence.
  • Where context evidence of uncharged acts is admitted, appropriate jury directions limiting its use to placing the charged conduct in context, and prohibiting its use as tendency evidence or as a substitute for proof of the charged acts, are essential.
  • The interplay between s 121 (the publication prohibition), s 62F(8) (conference notes), and s 19N of the Family Law Act 1975 may all be relevant when criminal trial courts are asked to rule on the admissibility of material from Family Court proceedings, and courts should consider each provision carefully before ruling.
  • In dismissing the argument for an acquittal on count 2, the Court of Criminal Appeal confirmed that a new trial remains the appropriate remedy where the grounds of appeal do not establish that an acquittal was mandated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M
- Family Law Act 1975 (Cth), ss 19N, 62F, 121
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)

Cases:
- R v Beserick (1993) 30 NSWLR 510
- R v AH (1997) 98 A Crim R 71