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14
Court of Criminal Appeal 6 October 2006

PGM v Regina

[2006] NSWCCA 310

Also reported as (2006) 164 A Crim R 426
Sexual offences
CRIMINAL LAW CRIMINAL LAW WHETHER TRIAL COUNSEL INCOMPETENT CRIMINAL LAW WHETHER EVIDENCE CORRECTLY ADMITTED CRIMINAL LAW

Citation: PGM v Regina [2006] NSWCCA 310
Court: NSW Court of Criminal Appeal
Date: 6 October 2006
Judge(s): McClellan CJ at CL, Barr J, Buddin J

Background

The appellant was convicted in the District Court on six counts of sexual offences against a child under the age of ten years, including sexual intercourse and indecent assault. The offences were alleged to have occurred between October 2003 and May 2004 at the appellant's home in Sydney. The complainant, a young neighbour who visited the house from time to time, gave her evidence by videorecording played to the jury.

At trial, the judge rejected a Crown application to tender several hundred to a thousand pornographic images found on the appellant's computer, ruling that the evidence of those images was so prejudicial that admitting them would cause the trial to miscarry. However, the judge did permit the Crown to adduce evidence of a single image that was directly relevant to one of the counts.

A central dispute on appeal concerned whether the judge was correct to subsequently find that the appellant had raised his good character, and whether the judge properly exercised the discretion to allow the Crown to adduce evidence in rebuttal of that good character, including evidence of the very computer images the judge had previously excluded as too prejudicial.

  • Whether the evidence about pornographic images found on the appellant's computer was correctly admitted
  • Whether the trial judge was correct to find that the appellant had placed his character in issue (that is, raised his good character before the jury)
  • Whether the discretion to allow the Crown to adduce rebuttal good character evidence was exercised correctly
  • Whether trial counsel was incompetent in failing to obtain or rely on certain medical evidence
  • Whether the evidence was sufficient for the jury to be satisfied of guilt beyond reasonable doubt

Decision

Good character and rebuttal evidence: The Court found that the trial judge erred in concluding that the appellant had raised his good character. As a consequence, the judge's decision to permit the Crown to adduce rebuttal evidence was also flawed. That rebuttal evidence included material relating to the computer images that the judge had previously ruled too prejudicial to be admitted at all. Admitting that material in those circumstances was inconsistent with the judge's own earlier ruling.

Effect on the trial: McClellan CJ at CL noted that the trial judge had originally rejected the tender of the many sexual images on the computer precisely because their prejudicial effect was so great that the trial would miscarry if they were admitted. Once that same material was then admitted on the mistaken basis that the appellant had raised his character, it became impossible to say the appellant had received a fair trial according to law.

Trial counsel: Barr J examined the complaint that counsel was incompetent in not obtaining useful medical evidence relating to the appellant's capacity for sexual function. Barr J found that counsel's advice was both competent and sound. The medical report obtained did not support the appellant's assertions, and counsel reasonably concluded it would be unwise to rely on it without stronger supporting evidence. This ground of appeal failed.

Sufficiency of evidence and other grounds: The Court did not find it necessary to determine the sufficiency of evidence ground in a way that would preclude a retrial. The existing evidence and the possibility of a fresh trial were left for the parties and the new tribunal to address.

Orders Made

  • Appeal allowed and convictions set aside
  • New trial ordered

Key Takeaways

  • Where a trial judge rules that certain evidence is too prejudicial to be admitted, admitting substantially the same evidence later on the basis that the accused has raised good character is fundamentally inconsistent and will undermine the fairness of the trial.
  • A finding that an accused has "raised good character" must be correctly established before the Crown is permitted to adduce rebuttal evidence; an erroneous finding on that threshold question can vitiate the entire trial.
  • Advice by trial counsel not to rely on expert evidence that does not support the client's position, and where there is a real risk the evidence will be turned against the accused, may constitute competent and sound professional judgment rather than incompetence.
  • The Court of Criminal Appeal will order a new trial, rather than an acquittal, where the fairness of the original trial was compromised but the evidence does not warrant a finding of insufficient proof.
  • Fresh evidence tendered on appeal must be both genuinely fresh and sufficiently cogent to be received; evidence that was available at trial and lacks the required probative value will not be admitted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 61M(2)
- Evidence Act 1995 (NSW), s 97 (tendency evidence)

Cases:
- Gabriel v R (1997) 76 FCR 279
- R v Bartle & Others [2003] NSWCCA 329
- R v Redd [1923] 1 KB 104
- M v The Queen (1994) 181 CLR 487
- Nudd v The Queen (2006) 80 ALJR 614