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Court of Criminal Appeal 2 April 2004

Hagarty v R

[2004] NSWCCA 89

Also reported as 145 A Crim R 138
Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL INTERCOURSE WITH A CHILD STANDARD OF PROOF ADEQUACY OF DIRECTIONS

Citation: R v Hagarty [2004] NSWCCA 89
Court: NSW Court of Criminal Appeal
Date: 2 April 2004
Judges: Simpson J, Sperling J, Bergin J

Background

The appellant was convicted in the District Court before Murrell DCJ and a jury on five counts of sexual intercourse with a child under 10, four counts of sexual intercourse with a child aged between 10 and 16, and two counts of indecent assault. The principal evidence at trial came from the complainant herself, who was 14 at the time, and her father.

During the trial, the complainant gave evidence of a broader course of sexual conduct by the appellant that was not itself the subject of any specific charge. This material was referred to as "relationship evidence." The complainant's father also gave evidence of an alleged admission by the appellant, in general terms, that he had engaged in sexual molestation of the complainant over a period of time.

The appellant appealed his conviction, arguing that the trial judge's directions to the jury on how to use the relationship evidence and the evidence of admissions were legally flawed.

  • Whether the trial judge erred in directing the jury that, if they accepted the evidence of the appellant's admissions, those admissions could be used to establish an improper sexual relationship with the complainant as background context.
  • Whether that evidence was improperly allowed to operate as tendency evidence (that is, evidence that the appellant had a propensity to commit the offences charged).
  • Whether the trial judge was required to direct the jury that the standard of proof for the relationship evidence was proof beyond reasonable doubt.

Decision

The Court of Criminal Appeal dismissed the appeal, with Sperling J delivering the principal judgment and Simpson and Bergin JJ agreeing.

On the relationship evidence given by the complainant, Sperling J found the trial judge's directions were adequate. The directions at paragraphs 32 and 34 of the summing up sufficiently conveyed to the jury the permissible use of the relationship evidence: as background providing context and explaining the nature of the relationship between the accused and the complainant. The direction at paragraph 33 clearly and precisely instructed the jury not to use that material as tendency evidence, and was found to comply fully with the requirements established in Gipp (1998) 194 CLR 106.

On the evidence of the appellant's admissions, the trial judge's direction at paragraph 38 of the summing up correctly limited the use the jury could make of those admissions. The admissions were made in response to a general accusation, and the trial judge directed the jury they could not be used to establish any particular offence. Taken together with the earlier direction against tendency reasoning, Sperling J found the criticism of the summing up was unsustainable.

The Court also rejected the argument that the trial judge should have directed the jury to apply proof beyond reasonable doubt to the relationship evidence. The absence of any request at trial for more detailed directions, combined with the limited attention given to this topic in counsel's addresses, meant the trial judge could not be criticised for not going further.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Relationship evidence in child sexual assault trials is admissible to provide background context and explain the nature of the relationship between the accused and the complainant, without necessarily being used as tendency evidence.
  • A clear and precise direction against tendency reasoning satisfies the requirements laid down in Gipp (1998) 194 CLR 106; the trial judge's direction at paragraph 33 of the summing up met that standard.
  • Where admissions are made in general terms, the jury may use them to corroborate a background of sexual impropriety, but cannot use them to establish that any particular charged offence occurred.
  • No error was established in the trial judge's refusal to direct the jury to apply the beyond reasonable doubt standard to the relationship evidence.
  • In dismissing the appeal, the Court of Criminal Appeal noted that the scant attention counsel gave to the relationship evidence in their addresses reduced the basis for criticising the trial judge for not providing more expansive directions on that topic.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules, r 4
- Evidence Act 1995 (NSW)

Cases:
- B (1992) 175 CLR 599
- Beserick (1993) 30 NSWLR 510
- Gipp (1998) 194 CLR 106
- MM (2000) 112 A Crim R 519
- Pfennig (1995) 182 CLR 461
- Wickham (Court of Criminal Appeal, 17 December 1991, unreported)