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5
Court of Criminal Appeal 31 August 2006

LEONARD V. REGINA

[2006] NSWCCA 267

Also reported as 67 NSWLR 545 164 A Crim R 374
Sexual offences
CRIMINAL LAW EVIDENCE APPEALS APPEAL AGAINST CONVICTION ADMITTED AS RELATIONSHIP EVIDENCE NO OBJECTION TAKEN AT TRIAL

Citation: Leonard v Regina [2006] NSWCCA 267
Court: New South Wales Court of Criminal Appeal
Date: 31 August 2006
Judge(s): Hodgson JA; Grove J; Adams J

Background

The appellant was the stepfather of the complainant, who was born in 1982. Following his marriage to the complainant's mother in 1989, he committed a series of sexual offences against the complainant spanning several years at the family home in Nowra. The complainant's mother gave evidence that she had witnessed a significant incident before Christmas 1994, when she found the appellant at the complainant's bed with his dressing gown open.

The appellant was tried before Garling DCJ in the Nowra District Court in June 2004. He was convicted by a jury on six counts of sexual offences including acts of indecency and attempted sexual intercourse. He was sentenced to a total effective term of nine years imprisonment, with a non-parole period of six years.

On appeal to the Court of Criminal Appeal, the appellant challenged his conviction on three grounds. The central dispute concerned the admissibility and proper use of evidence of uncharged sexual conduct and the adequacy of the trial judge's directions to the jury about that evidence.

  • Whether the trial judge's directions to the jury on the delay in complaint were adequate to protect the appellant from unfair prejudice arising from forensic disadvantage.
  • Whether evidence of uncharged sexual conduct admitted as relationship evidence was, in substance, used impermissibly as tendency evidence, and whether any error arose in the admission of that evidence or the directions given about it.
  • Whether, even if any error existed, the proviso under rule 4 applied so that no substantial miscarriage of justice resulted.

Decision

Ground 1: Delay directions

The Court found no error in the trial judge's directions concerning delay. Garling DCJ had expressly directed the jury to account for the forensic disadvantage caused to the appellant by the passage of time, including the unavailability of potential witnesses and the difficulty in testing many of the allegations. The Court held that these directions were adequate in the circumstances, and the absence of a specific form of words did not render them deficient.

Ground 2: Relationship evidence and tendency directions

The primary contest concerned evidence of uncharged sexual conduct by the appellant against the complainant, which was admitted as relationship evidence and corroborated in part by the complainant's mother. No objection had been taken to its admission at trial. The trial judge directed the jury in unequivocal terms that they must not use the uncharged acts to establish a tendency on the part of the appellant and that it could not form part of the chain of proof of the charged offences.

Hodgson JA engaged in a detailed analysis of how relationship evidence and tendency evidence differ and interact under the Evidence Act 1995, noting that evidence admitted as relationship evidence may nonetheless carry a tendency reasoning risk. Grove J and Adams J, while broadly agreeing with the outcome, declined to adopt the full analytical framework proposed by Hodgson JA. Both observed that the clear direction against tendency reasoning given by the trial judge was sufficient to remedy any risk of impermissible use, and that once that direction was given the restrictions in s 97 of the Evidence Act became irrelevant. All three judges agreed that the evidence was properly admitted in line with the High Court's approach in KRM v The Queen.

Ground 3

The Court found no error in the judge's handling of the remaining ground and dismissed it without detailed elaboration, adopting the reasoning in the primary judgment.

Adams J added a notable observation that the analytical refinement proposed by Hodgson JA, while logically coherent, risked making it harder in practice for judges to direct juries appropriately where tendency and relationship evidence significantly overlap. Adams J also noted the forensic difficulties faced by an accused who must challenge generalised relationship evidence when specific uncharged incidents are embedded within it.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that evidence of uncharged sexual conduct between an accused and a complainant is admissible as relationship evidence under the principles in KRM v The Queen, which remain applicable in New South Wales notwithstanding the Evidence Act 1995.
  • Where a trial judge gives an unequivocal direction that uncharged conduct must not be used to establish tendency, the restrictions in s 97 of the Evidence Act do not apply to that evidence, and no error arises merely because the evidence could theoretically support a tendency inference.
  • In dismissing the appeal, the Court declined to impose a rigid distinction between relationship and tendency evidence, with Grove J and Adams J expressing caution about the practical consequences of Hodgson JA's more precise analytical framework for future jury directions.
  • Adequate delay directions do not require any particular form of words, provided the jury is clearly directed to consider the forensic disadvantage caused to the accused by the passage of time.
  • Adams J observed that the Crown should identify, at the outset of a trial, any evidence capable of being characterised as tendency or relationship evidence, so that admissibility and appropriate directions can be addressed early.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 100, 101, 137

Cases
- KRM v The Queen (2001) 206 CLR 221
- B v The Queen (1992) 175 CLR 599
- Crampton v The Queen (2000) 206 CLR 161
- Doggett v The Queen (2001) 75 ALJR 1290
- Gipp v The Queen (1998) 194 CLR 106
- Longman v The Queen (1989) 168 CLR 79
- M v The Queen (1994) 181 CLR 487
- Mearns v R [2005] NSWCCA 396
- Qualtieri v The Queen [2006] NSWCCA 95
- R v AH (1997) 42 NSWLR 702
- R v Beserick (1993) 30 NSWLR 410
- R v BWT (2002) 54 NSWLR 241
- R v DBG [2002] NSWCCA 328
- R v Johnston (1998) 45 NSWLR 362
- R v WRC [2002] NSWCCA 210
- Wilson v The Queen (1970) 123 CLR 334