Citation: Kaifoto aka Teaupa v Regina [2006] NSWCCA 186
Court: NSW Court of Criminal Appeal
Date: 19 June 2006
Judge(s): Grove J, James J, Simpson J
Background
The appellant was tried in the District Court on two separate indictments arising from offences against two different women. The first indictment related to a woman referred to as RA and included charges of assault and aggravated sexual assault, on which the appellant was convicted following jury verdicts (having pleaded guilty to two counts). The second indictment related to a woman referred to as TM and included charges of sexual intercourse without consent, assault occasioning actual bodily harm, and detaining a person for the advantage of the offender.
The offences against TM arose from a relationship that began in late 1998. The complainant gave evidence of an anal rape at her home in March 1999, followed by a sustained assault at a flat in Liverpool and then a period during which she was effectively detained at that flat by the appellant's threats and prior violence. The appellant was convicted by a jury on the sexual assault count and the detention count, and pleaded guilty to the assault count.
Before the trials commenced, the trial judge (Dodd DCJ) ruled that evidence of prior assaults could not be admitted as tendency or coincidence evidence. The Crown then proceeded on two separate indictments. The same prior conduct evidence was subsequently admitted during the TM trial as "relationship evidence," on a different legal basis. The appellant challenged his convictions on the sexual assault and detention counts, and alternatively sought leave to appeal against sentence.
Legal Issues
- Whether the trial judge gave adequate and correct directions regarding the admitted "relationship evidence"
- Whether the trial judge erred in admitting the relationship evidence at all, given the earlier ruling excluding it as tendency or coincidence evidence
- Whether the Crown Prosecutor made improper statements during address, and whether any such statements warranted intervention
- Whether delay in the prosecution warranted any relief
- Whether the sentencing orders reflected the sentencing judge's stated intention and were otherwise lawful
Decision
The Court dismissed the appeal against conviction. It found no inconsistency between the earlier ruling excluding tendency and coincidence evidence and the subsequent admission of the same conduct as relationship evidence. The two bases for admission are legally distinct: the relationship evidence was admitted not to prove a tendency, but to establish the relevant states of mind of both the appellant and TM at the time of the alleged detention. Specifically, the evidence explained why the appellant's instruction to TM to remain on the premises carried an implied threat, and why TM understood and feared that threat, supporting the finding of detention without physical restraint.
On the jury directions, the Court was satisfied that the trial judge's summing-up correctly confined the use of the relationship evidence to those states of mind. The directions did not traverse the earlier ruling. The Court also found that complaints about the Crown Prosecutor's address were matters for which a remedy was available at trial, and that no error in that respect warranted appellate intervention.
The appeal against sentence was allowed in part. The Court found that the sentencing orders as structured did not accurately reflect the intention the sentencing judge had stated when passing sentence. The orders were varied to achieve that stated intention, rather than to alter the overall sentencing outcome.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted; appeal against sentence allowed in part
- Sentencing orders varied to reflect the intention stated by the sentencing judge at first instance
Key Takeaways
- Admitting prior conduct as "relationship evidence" does not necessarily breach a ruling that excluded the same conduct as tendency or coincidence evidence, provided the evidence is tendered and admitted on a legally distinct basis, directed to different issues such as the parties' states of mind.
- A conviction for detaining a person under s 90A of the Crimes Act 1900 can be sustained without proof of physical restraint, where the evidence establishes that the complainant was kept in place through implied threats, provided the jury is properly directed on the use of background evidence to establish those threats.
- Where a complaint about a Crown Prosecutor's address could have been addressed by an objection or direction at trial, the Court of Criminal Appeal may decline to grant relief on that ground alone.
- In dismissing the conviction appeal, the Court confirmed that the adequacy of jury directions on relationship evidence turns on whether those directions correctly confined the use of the evidence to the purpose for which it was admitted.
- Sentencing orders that do not accurately reflect the sentencing judge's stated intention may be corrected on appeal without disturbing the substance of the sentence itself.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61J(1), 90A
Cases:
- Longman v The Queen (1989) 168 CLR 79
- R v Atroushi [2001] NSWCCA 406
- R v Beserick (1993) 30 NSWLR 510
- R v Garner (1963) 81 WN (NSW) 120
- R v Hookey [2004] NSWCCA 223
- R v Murray (1987) 11 NSWLR 12
- R v Preston (unreported, NSWCCA, 9 April 1997)
- R v Simpson (2001) 53 NSWLR 704