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Court of Criminal Appeal 16 July 2004

REGINA v ELD

[2004] NSWCCA 219

Sexual offences

Citation: Regina v ELD [2004] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 16 July 2004
Judge(s): Bell J (primary judgment), Howie J, Hislop J (both agreeing)

Background

The respondent faced trial in the District Court at East Maitland on three counts of aggravated indecent assault against a child complainant, CD, allegedly committed between 1998 and 2001. The charged offences occurred at the respondent's property and on beach outings. On each occasion, at least one other child, SW or SAH, was alleged to have been present.

Prior to jury empanelment, the Crown sought rulings permitting two categories of evidence: first, evidence from CD that SW and SAH were present during the charged offences; and second, evidence from SW and SAH of uncharged occasions on which the respondent had indecently assaulted CD and the other children. The Crown tendered this second category as evidence of the nature of the relationship between the respondent and CD.

The trial judge, English DCJ, rejected both categories under s 137 of the Evidence Act 1995, concluding that the prejudicial effect of the evidence outweighed its probative value. The Director of Public Prosecutions appealed those rulings under s 5F(3A) of the Criminal Appeal Act 1912.

  • Whether the trial judge erred in excluding evidence that SW and SAH were present on the occasions the subject of the three counts in the indictment
  • Whether the trial judge erred in exercising the s 137 discretion to exclude evidence of uncharged indecent assaults on CD as evidence of the relationship between CD and the respondent
  • Whether the Court of Criminal Appeal should, having set aside the rulings, substitute its own rulings or remit the matters for the trial judge to determine

Decision

The Court of Criminal Appeal, through Bell J (with Howie J and Hislop J agreeing), allowed the appeal on both grounds. The Court found that the trial judge's exercise of the s 137 discretion miscarried in respect of both categories of evidence.

On the first category, the Court found that evidence of SW's and SAH's presence on the charged occasions was directly relevant and necessary context. Because CD's accounts described assaults occurring in the presence of those children, calling SW and SAH as witnesses meant their evidence could not meaningfully be separated from what they witnessed. If SW or SAH failed to recall the specific charged incidents, that absence of recollection risked misleading the jury unless the jury understood that CD was frequently assaulted in the presence of these children. This contextual necessity substantially diminished any prejudicial effect.

On the second category, the Court found that evidence of uncharged assaults was capable of serving a legitimate purpose as relationship evidence, showing the pattern of the respondent's conduct towards CD in the presence of the other children. The trial judge had not sufficiently weighed the probative value of this evidence against any unfair prejudice.

The Court declined to substitute its own rulings on the admissibility of the uncharged assault evidence, concluding that such determinations were best left to the trial judge, who would also be required to give the jury appropriate limiting directions if that evidence were admitted.

Orders Made

  • The appeal was allowed and the trial judge's ruling that CD may not give evidence of the presence of SW and SAH on the occasions charged in the indictment was set aside.
  • That part of the trial judge's ruling rejecting evidence of uncharged indecent assaults on CD as relationship evidence between CD and the respondent was also set aside.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge's discretion under s 137 of the Evidence Act 1995 to exclude evidence where its prejudicial effect outweighs its probative value must account fully for the contextual necessity of the evidence, not only its potential to prejudice.
  • Where witnesses are present on charged occasions and also allege separate uncharged conduct, their evidence of those other occasions may be inseparable from the evidence they give about the charged events, reducing the weight properly attributable to any prejudice argument.
  • Evidence of uncharged sexual offences may be admissible as relationship evidence, but the trial court must give the jury clear limiting directions specifying the basis on which such evidence is received, consistent with the approach in BRS v The Queen (1997) 191 CLR 275 and subsequent authorities.
  • In setting aside discretionary rulings, the Court of Criminal Appeal does not invariably substitute its own rulings; where the matter is better assessed in the full context of trial, it may remit the question to the trial judge.
  • A risk of misleading the jury, arising from a witness's failure to recall a specific charged incident where that witness experienced similar conduct on many other occasions, is a relevant factor in assessing the probative value and necessity of relationship evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M
- Crimes Legislation Further Amendment Act 2003 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), s 137

Cases
- BRS v The Queen (1997) 191 CLR 275
- Harriman v The Queen (1989) 167 CLR 590
- R v AH (1997) 42 NSWLR 702
- R v Basha (1989) 39 A Crim R 337
- R v Dann [2000] NSWCCA 185
- R v Edwards [1998] 2 VR 354
- R v GK [2001] NSWCCA 413; 53 NSWLR 317
- R v JFP (unreported, Court of Criminal Appeal, 21 June 1996)
- R v L (unreported, Court of Criminal Appeal, 6 April 1992)
- R v Milakovic [2004] NSWCCA 199
- R v NKS [2004] NSWCCA 144
- R v Quach [2002] NSWCCA 519
- R v TAB [2002] NSWCCA 274
- Rogers v The Queen (1994) 181 CLR 251