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14
Court of Criminal Appeal 22 May 2007

R v SJRC

[2007] NSWCCA 142

Sexual offences
CRIMINAL LAW CRIMINAL APPEAL ACT S 5F(3A) ERROR OF PRINCIPLE BY TRIAL JUDGE

Citation: R v SJRC [2007] NSWCCA 142
Court: New South Wales Court of Criminal Appeal
Date: 22 May 2007
Judge(s): James J, Rothman J, Harrison J

Background

The respondent faced charges in the District Court of indecent assault and three counts of sexual intercourse without consent, alleged to have occurred on 6 January 2006 in a psychiatric hospital. The complainant, his former domestic partner, alleged he led her into a bathroom cubicle and performed non-consensual sexual acts while a friend had temporarily left the room with their child.

In the days following the incident, the respondent sent the complainant several text messages. Two messages sent on 10 January 2006, retrieved from the respondent's own phone, were the focus of the evidentiary dispute. The messages, written in abbreviated text language, appeared to reference what had occurred on the preceding Friday and expressed regret, with one stating: "U no that sex is the main way that i no how to show u i love u."

The Crown argued these messages corroborated the complainant's account of non-consensual sexual conduct. The trial judge, Goldring DCJ, ruled the messages inadmissible on the basis that they were ambiguous and that their probative value was outweighed by the danger of unfair prejudice under section 137 of the Evidence Act. The scheduled trial did not proceed. The Director of Public Prosecutions appealed.

  • Whether a Crown appeal lay under section 5F(3A) of the Criminal Appeal Act, specifically whether the trial judge's ruling "eliminates or substantially weakens the prosecution's case"
  • Whether Goldring DCJ erred in principle in excluding the text messages under section 137 of the Evidence Act by requiring that evidence be "unambiguous" before its probative value could be assessed
  • What the word "substantially" means in the phrase "substantially weakens" in section 5F(3A)

Decision

On the threshold jurisdictional question, the Court of Criminal Appeal held that the ruling did not eliminate the Crown case (the complainant's evidence remained available), but it did substantially weaken it. The court examined the meaning of "substantially" at length, distinguishing between two senses of the word: "of substance" (as opposed to nominal or ephemeral) and "in substance" (meaning essentially or wholly). In context, the court concluded that "substantially weakens" requires the exclusion to have a significant weakening effect, not merely a trivial one, and that this standard is met when evidence of real cogency or force is withheld.

On the merits, the court found that Goldring DCJ committed an error of principle. His Honour had applied an incorrect test by requiring evidence to be "unambiguous" before it could satisfy the section 137 balancing exercise. Ambiguity in evidence goes to weight, not to admissibility in the section 137 framework. The text messages, viewed in the context of the Crown case, had genuine probative value capable of corroborating the complainant's account, and that value had not been properly weighed against the risk of prejudice.

All three judges agreed the appeal should be allowed. James J delivered the principal reasons, with Rothman J providing additional analysis of the meaning of "substantially weakens" and Harrison J agreeing with James J.

Orders Made

• The appeal is allowed
• The ruling on admissibility of evidence is set aside
• The orders proposed by James J are made

Key Takeaways

  • Under section 5F(3A) of the Criminal Appeal Act, a Crown appeal against an evidentiary ruling will only lie where the ruling "eliminates or substantially weakens" the prosecution's case. The Court confirmed that "substantially weakens" requires a significant, not merely nominal or ephemeral, reduction in the strength of the Crown case.

  • Evidence of real cogency or force that is excluded by a trial judge can meet the "substantially weakens" threshold, even where other evidence (such as the complainant's testimony) remains available to the Crown.

  • Applying a requirement that evidence be "unambiguous" before it can satisfy the section 137 balancing exercise is an error of principle. Ambiguity bears on the weight a jury may ultimately give to evidence, not on whether its probative value outweighs the danger of unfair prejudice.

  • The Court reiterated that the power conferred by section 5F(3A) is intended to be used sparingly by the Crown. It is not a mechanism to challenge every adverse evidentiary ruling.

  • Rothman J drew on a broad range of authority to illuminate the two distinct meanings of "substantial," confirming that in the section 5F(3A) context the word operates in its first sense: distinguishing a real and significant weakening from one that is purely nominal.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act (NSW), section 5F(3A)
- Evidence Act (NSW), section 137

Cases
- R v NKS [2004] NSWCCA 144
- R v Shamouil [2006] NSWCCA 112
- R v Lameri [2004] NSWCCA 217
- R v Blick (2000) 111 A Crim R 326
- R v Kalajzich (1989) 39 A Crim R 415
- R v Berrill [1982] Qd R 508
- Vickers v Regina (2006) 160 A Crim R 195
- House v The King (1936) 55 CLR 499
- Tillmanns Butcheries v AMIEU (1979) 42 FLR 331
- Palser v Grinling [1948] AC 291
- Commissioner for Superannuation v Scott (1987) 13 FCR 404
- Additional civil authorities cited on the meaning of "substantially"