Citation: Regina v Harker [2004] NSWCCA 427
Court: NSW Court of Criminal Appeal
Date: 2 December 2004
Judge(s): Santow JA, Bell J, Howie J (Howie J delivered the principal judgment)
Background
The respondent faced 18 charges of child sexual assault offences alleged to have been committed against a male complainant between January 1995 and December 1996, when the complainant was aged 12 to 14 years. The Crown sought to call a witness, referred to as DE, whose evidence was intended to establish tendency: broadly, that the respondent had engaged in similar sexual conduct with DE during the same period.
A statement by DE had been served on the defence in early 2004, and a purported tendency notice under s 99 of the Evidence Act 1995 was later issued. However, on the morning of the trial in November 2004, the Crown served a further statement from DE without giving any notice of its intention to rely on that material as tendency evidence.
The trial judge, Puckeridge DCJ, declined to admit DE's evidence as tendency evidence. His Honour did so on the basis that the prejudicial effect of the evidence outweighed its probative value under s 101(2) of the Evidence Act, without separately addressing whether the notice requirement could be dispensed with under s 100(1). The Crown appealed under s 5F(3A) of the Criminal Appeal Act 1912.
Legal Issues
- Whether the trial judge erred in failing to determine under s 100(1) of the Evidence Act whether the tendency notice requirement should be dispensed with, notwithstanding the Crown's failure to give notice under s 97(1).
- Whether the tendency evidence of DE had sufficient probative value to outweigh its prejudicial effect under s 101(2) such that it ought to be admitted.
- Whether the Court should, in the exercise of its discretion under ss 135 or 137, reject the evidence even if otherwise admissible.
- Whether any part of DE's evidence was admissible on a basis other than tendency (a question the trial judge had not been asked to address).
Decision
The Court of Criminal Appeal allowed the appeal in part. Howie J, with whom Santow JA and Bell J agreed, found that the trial judge had not properly addressed the threshold question under s 100(1): whether to direct that the tendency rule simply not apply, notwithstanding the Crown's failure to give notice. That failure to engage with s 100(1) was itself an error that warranted intervention.
On the substantive question of probative value versus prejudicial effect under s 101(2), the Court found that the trial judge had erred. The evidence of DE, particularly as to incidents directly involving both DE and the complainant, had significant probative value as tendency evidence and could not be said to be outweighed by unfair prejudice in the relevant sense. The Court took into account that the evidence concerned the respondent's conduct with children of similar age in analogous circumstances.
As to the residual discretion to exclude under ss 135 and 137, the Court saw no basis on the available material for exclusion. The probative value was substantial, and the prejudice in question was the legitimate impact of cogent evidence rather than unfair prejudice of the kind those provisions are designed to address.
The Court was critical of the Crown's conduct throughout the proceedings. Howie J observed that the Crown had been "the author of the problem" it was seeking to remedy, having failed to prepare the matter adequately well before trial. The Court noted this was another instance of an eleventh-hour Crown appeal arising from deficiencies in the prosecution's own preparation, which was unfair to the trial judge, the accused, and other litigants.
Orders Made
- The appeal against Puckeridge DCJ's refusal to direct that the tendency rule not apply to DE's evidence was allowed and that judgment set aside.
- The Court directed under s 100(1) of the Evidence Act that the tendency rule not apply to the evidence in DE's statement dated 15 November 2004, notwithstanding the Crown's failure to give notice under s 97(1), on two conditions:
- The trial before Puckeridge DCJ be adjourned to a date to be fixed by the District Court.
- The Crown pay the costs of the proceedings before Puckeridge DCJ relating to the trial and the costs of the adjournment.
- The Crown appeal was otherwise dismissed.
Key Takeaways
- Under s 100(1) of the Evidence Act 1995, a court has power to direct that the tendency rule not apply even where the required notice under s 97(1) has not been given. A trial court must address that question separately before moving to the discretionary exclusion provisions.
- Where the Crown fails to give tendency notice, that failure does not automatically result in exclusion of the evidence: the court retains a statutory discretion under s 100(1) to dispense with the notice requirement, subject to any conditions it considers appropriate.
- The Court of Criminal Appeal confirmed that "prejudicial effect" for the purposes of s 101(2) refers to unfair prejudice, not simply the adverse impact of cogent and legitimate evidence against the accused.
- In granting the s 100(1) direction, the Court imposed a costs order against the Crown as a condition, reflecting the principle that a party whose procedural failures necessitate an adjournment may be required to bear the resulting costs.
- The Court of Criminal Appeal issued a pointed censure of Crown preparation, observing that appellate intervention at the eleventh hour, caused by the prosecution's own failings, creates unfairness for all participants in the criminal justice system, including the accused and the trial judge.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Evidence Act 1995 (NSW), ss 38, 97(1), 99, 100(1), 101(2), 135, 137, 192, 195
- Evidence Act Regulations, cl 6
Cases:
- AN (2000) 117 A Crim R 176
- R v Milakovic [2004] NSWCCA 199
- R v Lockyer (1996) 89 A Crim R 457
- R v Milton [2004] NSWCCA 195