Citation: Regina v Barton [2004] NSWCCA 229
Court: New South Wales Court of Criminal Appeal
Date: 8 July 2004
Judge(s): Grove J (primary judgment); Dunford J and Kirby J (both agreeing)
Background
The appellant was a youth worker employed at a residential institution for troubled young males aged roughly ten to mid-teens. He was charged in 2000 with sexual offences alleged to have occurred between 1985 and 1991 against seven complainants at that institution. One charge was withdrawn at trial after a complainant failed to attend, and the appellant was convicted on the remaining counts.
The trial was conducted in the Sydney District Court before McGuire DCJ and a jury. Verdicts were returned on 26 July 2002, and the appellant had remained in custody since that date. He was represented by different counsel on appeal.
Two broad categories of evidence were at issue on appeal: the evidentiary rulings made during the trial, particularly around tendency and coincidence evidence, and the conduct of the appellant's legal representatives during the trial itself.
Legal Issues
- Whether the trial judge erred in refusing an application for separate trials in respect of each complainant
- Whether the trial judge erred in admitting the evidence of each complainant as tendency or coincidence evidence against the others, particularly where the alleged conduct varied significantly in seriousness
- Whether the trial judge erred in admitting the evidence of two further witnesses (not complainants in the charges) as tendency evidence
- Whether the conduct of trial counsel caused a miscarriage of justice, specifically through decisions about advising the appellant on whether to give evidence and about calling available good character witnesses
- Whether these matters, individually or cumulatively, warranted a new trial
Decision
Tendency and coincidence evidence: The court found that the trial judge did not adequately distinguish between two categories of alleged conduct. Some complainants described conduct such as watching them shower, touching their bodies while applying lotions, and similar acts of a lesser degree of seriousness. Other complainants alleged masturbation, fellatio, and anal intercourse. Grove J held that evidence of the lesser conduct could only be admitted as tendency evidence in proof of the more serious allegations if its probative value substantially outweighed its prejudicial effect. No discernible pattern or "signature" linked the two categories of conduct, and there was a real risk that the jury formed a general impression of the appellant's sexual interest rather than evaluating each charge on its own evidence.
Separate trials: At minimum, the court concluded that the trial in relation to the two complainants who alleged the most serious conduct should have been separated from the trial involving the other four complainants. The trial judge had treated all complainants as a single group without addressing the significantly more serious nature of some of the allegations. This error in the joint trial application was sufficient to establish a miscarriage of justice.
Conduct of trial counsel: The court also found that the conduct of the appellant's legal representatives at trial contributed to the miscarriage. Counsel advised the appellant not to give evidence, in part based on a mistaken understanding of surveillance material provided by the Crown and without adequately examining that material. Counsel also failed to advise the appellant that he could give evidence while refraining from making any claim about his character that might invite the use of prior material. Additionally, counsel did not call available good character witnesses, limiting focus instead to obtaining a standard jury direction. The court noted that sworn evidence from the appellant denying the offences could have raised a reasonable doubt, particularly given that the trial judge had himself drawn attention to the disturbed and in some cases criminal backgrounds of the complainants.
Cumulative effect: Grove J concluded that these matters, taken together, caused the trial to miscarry. It was therefore unnecessary to elaborate on every argument raised, and the sentence appeal was not addressed given the outcome on conviction.
Orders Made
- Appeal against conviction allowed
- Convictions and sentences in the District Court quashed
- New trial ordered on the counts of the indictment on which the appellant was convicted
Key Takeaways
- Tendency evidence in multi-complainant sexual assault trials must be assessed by reference to the specific conduct alleged against each complainant, not by treating all complainants as an undifferentiated group. Where alleged conduct varies significantly in seriousness, the trial judge must address that variation explicitly.
- Under the principles confirmed in Pfennig v The Queen and applied through the Evidence Act 1995, propensity or tendency evidence is only admissible where its probative value substantially outweighs its prejudicial effect. A generalised inference of sexual interest does not satisfy that threshold when used to prove serious offences from evidence of less serious conduct.
- Miscarriage of justice can arise from the cumulative effect of multiple errors, even where no single error might alone have been sufficient to disturb the verdict.
- Deficiencies in the conduct of trial counsel can form a distinct and independent ground of appeal. Errors identified here included reliance on a misunderstood forensic concession from the Crown, failure to examine available evidence, and failure to advise the client of all options before deciding not to give evidence.
- The Court of Criminal Appeal confirmed that, at any new trial, questions of whether further separation of charges is required will be a matter for the presiding judge in light of the circumstances at that time.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
Cases:
- Pfennig v The Queen (1995) 182 CLR 461
- TKWJ v The Queen (2002) 212 CLR 124
- R v Ellis [2003] NSWCCA 319
- R v N [2003] QCA 508
- R v D (1996) 86 A Crim R 1