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Court of Criminal Appeal 11 May 2004

R v N.K.S.

[2004] NSWCCA 144

Sexual offences
CRIMINAL LAW AND PROCEDURE S 5F APPEAL BY CROWN

Citation: R v N.K.S. [2004] NSWCCA 144
Court: Court of Criminal Appeal, New South Wales
Date: 11 May 2004
Judge(s): Grove J, Howie J, Newman AJ

Background

The respondent stood trial in the Newcastle District Court before Coolahan DCJ and a jury on an indictment containing seven counts of a sexual nature, including indecent assault, carnal knowledge, and sexual intercourse without consent, all alleged to have been committed against his natural daughter between 1980 and 1985.

During the Crown case, the prosecution sought to call a psychologist who had consulted with the respondent in late 1985. According to her evidence on the voir dire, the respondent told her on 29 October 1985 that he had sexual thoughts about his daughter, and on 3 December 1985 that there had been sexual contact involving mutual masturbation, with the daughter's conduct presented by the respondent as a contributing factor.

The trial judge rejected this evidence on 6 May 2004, expressing concern that the jury would be highly likely to treat it as an impermissible admission of guilt on the counts charged. The Crown appealed that ruling to the Court of Criminal Appeal on the same day, the first occasion on which the newly enacted section 5F(3A) of the Criminal Appeal Act 1912 had been invoked.

  • Whether the Crown could appeal mid-trial against a ruling on the admissibility of evidence under the newly inserted section 5F(3A) of the Criminal Appeal Act 1912, which permits appeal where a ruling eliminates or substantially weakens the prosecution's case.
  • Whether the trial judge erred in rejecting the psychologist's evidence under section 137 of the Evidence Act 1995, which allows a court to exclude evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant.
  • Whether the concern that the jury might misuse the evidence as a direct admission of guilt provided a sound basis for exclusion under section 137.

Decision

The Court of Criminal Appeal vacated the trial judge's orders rejecting the psychologist's evidence and lifted the stay of proceedings, enabling the trial to resume. All three judges agreed in the result, with Grove J and Howie J providing separate reasons and Newman AJ agreeing with both.

The Court found the evidence plainly admissible. It was probative of the nature of the relationship between the respondent and the complainant at a time closely corresponding to the alleged offences, and it served as corroboration of the complainant's account. Corroborative evidence does not need to replicate the precise detail of the evidence it is said to support; it is sufficient that it strengthens or confirms the broader account. The fact that the complainant gave no evidence of mutual masturbation was therefore not a reason to exclude the psychologist's account.

The trial judge's section 137 analysis was found to be fundamentally flawed. The Court held there was no reasonable foundation for the concern that a jury would use the evidence impermissibly as an admission of guilt of the specific charged offences. A jury was entitled to treat the statements as an admission of sexual interest in the complainant, which was directly relevant given the respondent's denial of any sexual conduct. Any residual risk of misuse could be addressed by appropriate judicial directions to the jury.

Howie J further rejected the respondent's submission that the evidence was unreliable because the psychologist had not recorded the exact words used and had drawn inferences from what was said. Reliability in that sense is ordinarily a matter for the jury to assess. The Court also confirmed that the evidence was not tendency evidence within the meaning of the Evidence Act, and nothing else in the material before the Court justified exercising a discretion to exclude it.

Orders Made

  • The orders rejecting the evidence of the psychologist relating to the conversations allegedly had on 29 October and 3 December 1985 be vacated.
  • A certificate under the Suitors' Fund Act 1951 was granted to the respondent in respect of his legal costs of the appeal.

Key Takeaways

  • This was the first reported exercise of the power under section 5F(3A) of the Criminal Appeal Act 1912 (inserted in February 2004), which permits the Attorney General or Director of Public Prosecutions to appeal mid-trial against an evidentiary ruling that eliminates or substantially weakens the prosecution's case.
  • Under section 137 of the Evidence Act 1995, a trial judge's discretion to exclude evidence on the ground of unfair prejudice must be grounded in a sound and defensible assessment; a concern that a jury might misuse evidence will not justify exclusion where that concern is without foundation and can be addressed by appropriate direction.
  • Corroborative evidence need not mirror the precise detail of the evidence it is offered to support. It is sufficient that it strengthens or confirms the broader account given by the witness it corroborates.
  • The reliability of oral evidence given by a professional witness from memory, and without contemporaneous notes of exact words, is generally a matter for the jury rather than a basis for exclusion.
  • An unsuccessful respondent to a Crown appeal under section 5F may be entitled to a certificate of costs under the Suitors' Fund Act 1951, consistent with earlier Court of Criminal Appeal practice in Crown appeals.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), section 5F (particularly the newly inserted subsection 3A)
- Evidence Act 1995 (NSW), section 137
- Suitors' Fund Act 1951 (NSW)
- Crimes Legislation Further Amendment Act 2003 (NSW)

Cases:
- R v Pera [1999] NSWCCA 106
- Doney v The Queen (1990) 171 CLR 207
- R v Hookham (No. 2) (1993) 32 NSWLR 345
- R v Rima [2003] NSWCCA 405