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Court of Criminal Appeal 2 December 2005

ELD v Regina

[2005] NSWCCA 466

Sexual offences

Citation: ELD v Regina [2005] NSWCCA 466
Court: Court of Criminal Appeal, NSW
Date: 2 December 2005
Judges: Sully J; Hulme J; Latham J

Background

The appellant faced three separate jury trials arising from allegations of indecent assault against young female complainants. The first two trials, which are the subject of this appeal, were conducted back-to-back before the same District Court judge in March 2004. Both concerned incidents said to have occurred when complainants were permitted to drive the appellant's four-wheel drive vehicles at Stockton Beach, sitting on his lap while he allegedly touched their breasts.

In the first 2004 trial, the appellant was convicted of one count of aggravated indecent assault against a complainant aged approximately twelve at the time of the alleged offending. In the second 2004 trial, the jury returned a mixed verdict: not guilty on two counts involving a different complainant as a younger child, but guilty on a third count concerning the same complainant at an older age.

The appellant challenged both convictions on multiple grounds. The primary dispute in the first trial appeal concerned the admission of evidence from a complainant in a prior trial that had resulted in acquittal. The primary dispute in the second trial appeal concerned jury directions on motive to lie and the alleged inconsistency of the jury's verdict on count three with its acquittals on counts one and two.

  • Whether the trial judge erred in admitting, as tendency or similar fact evidence, the evidence of a complainant from a prior trial in which the appellant had been acquitted.
  • Whether the admission of such evidence was precluded by, or inconsistent with, the principle against double jeopardy established in The Queen v Carroll (2002) 213 CLR 635.
  • Whether any miscarriage of justice arose from the trial judge's conduct regarding cross-examination of that prior-acquittal complainant, or from defence counsel's failure to adduce contamination evidence.
  • Whether the trial judge gave adequate directions on the complainant's alleged motive to lie in the second trial.
  • Whether the guilty verdict on count three of the second trial was unreasonable or irreconcilably inconsistent with the acquittals on counts one and two.

Decision

First Trial: Admission of Prior-Acquittal Evidence

The central question in the first trial appeal was whether a complainant whose evidence had been led at a prior trial resulting in acquittal could give similar fact evidence in a subsequent trial. The Court engaged at length with The Queen v Carroll and analogous decisions from England and New Zealand. The majority concluded that admitting such evidence did not necessarily contravene the double jeopardy principle, provided the evidence was properly assessed for probative value and potential prejudice under the Evidence Act 1995 (NSW) framework. The trial judge's conduct of an extensive voir dire and her detailed reasoning were treated as significant indicators that the admission was not in error.

Grounds two, three, and four of the first trial appeal, relating respectively to the judge's guidance to defence counsel, the failure to lead contamination evidence, and the adequacy of jury directions, were also considered. The majority found no appellate error warranting intervention on any of those grounds.

Second Trial: Motive to Lie and Verdict Consistency

On the question of jury directions regarding motive to lie, the Court examined whether the trial judge had adequately directed the jury to consider evidence bearing on the complainant's possible reasons for fabricating the allegation. The majority concluded that no reviewable error was established on this ground.

On the inconsistency argument, the Court applied the principle from Mackenzie v R (1996) 190 CLR 348, recognising that juries do not always reach conclusions on strict logical grounds and may return mixed verdicts for reasons that reflect their own sense of fairness rather than legal inconsistency. The Court found the acquittals on counts one and two were explicable on the evidence, notably an apparent tension between the complainant's words and conduct, and that the difference in verdicts did not rise to the level requiring appellate intervention to prevent injustice.

Orders Made

• Dismiss the appeal against the Appellant's conviction in the second trial
• Agree with the orders proposed by Sully J regarding the appeal against the conviction resulting from First Trial
• Order 3 of the non-publication orders is no longer applicable

Key Takeaways

  • Admitting evidence from a complainant in a prior trial that ended in acquittal does not automatically violate the double jeopardy principle. The Court of Criminal Appeal confirmed the admissibility question turns on the proper application of the Evidence Act 1995 (NSW) framework, including the balancing of probative value against unfair prejudice, rather than on a categorical bar.
  • Where a trial judge conducts a thorough voir dire and reasons carefully through the admissibility of prior-acquittal evidence, appellate courts will be slow to find error in that exercise of discretion.
  • Mixed jury verdicts on related counts do not, without more, constitute appellate error. In dismissing the inconsistency ground, the Court reaffirmed the Mackenzie v R principle that appellate courts must be cautious before concluding a jury acted unreasonably simply because its verdicts on related counts cannot be reconciled by strict logic.
  • A discernible evidential basis for acquittal on some counts, such as a tension in a complainant's own conduct, can render the overall pattern of verdicts explicable even where it might otherwise appear contradictory.
  • Non-publication orders applied to this judgment, with the appellant and all complainants identified only by initials throughout.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2)
- Evidence Act 1995 (NSW)

Cases
- The Queen v Carroll (2002) 213 CLR 635
- Regina v Z [2002] 2 AC 483
- R v Degnan [2001] 1 NZLR 280
- Garrett v The Queen (1997) 139 CLR 437
- Pfennig v The Queen (1995) 182 CLR 461
- Browne v Dunn (1893) 6 R 67
- M v The Queen (1994) 181 CLR 487
- R v Markuleski (2001) 52 NSWLR 82
- MFA v The Queen (2002) 213 CLR 606
- R v Vinh Le [2000] NSWCCA 49
- R v Storey (1978) 140 CLR 364
- Mackenzie v R (1996) 190 CLR 348
- R v Kirkham (1987) 44 SASR 591