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Court of Criminal Appeal 29 June 2007

KJR v REGINA

[2007] NSWCCA 165

Also reported as (2007) 173 A Crim R 226
Sexual offencesAssault & violence
CRIMINAL LAW PLEA OF NOT GUILTY SEXUAL OFFENCES ASSAULT OCCASIONING ACTUAL BODILY HARM DIRECTIONS GIVEN BY TRIAL JUDGE TENDENCY EVIDENCE

Citation: KJR v Regina [2007] NSWCCA 165
Court: New South Wales Court of Criminal Appeal
Date: 29 June 2007
Judges: McClellan CJ at CL, Simpson J, Rothman J

Background

The appellant was convicted in the District Court of five sexual offences and one count of assault occasioning actual bodily harm. The victim was his older daughter. The offences spanned several years from 1979 into the 1980s, and the complainant did not come forward until many years later.

At trial, the Crown led tendency evidence (evidence of the appellant's propensity to behave in a particular way) relating to his conduct toward his daughters. The trial judge, Karpin DCJ, directed the jury on both the use of that tendency evidence and on the risks associated with the lengthy delay between the alleged offences and the complaint.

The appellant challenged his convictions on the basis of the trial judge's summing-up, specifically the directions on tendency evidence and on delay. He also sought leave to appeal against the sentences imposed, arguing they were manifestly excessive.

  • Whether the trial judge's direction on tendency evidence (under s 97 of the Evidence Act 1995) was erroneous or misleading, including whether language associated with coincidence evidence (s 98) was inappropriately used.
  • Whether the trial judge's direction on the dangers of convicting on the basis of a complainant's uncorroborated evidence after lengthy delay (a Longman direction) was adequate.
  • Whether leave to appeal against sentence should be granted, and if so, whether the sentences were manifestly excessive.

Decision

Tendency evidence direction: The Court noted that some passages in the summing-up used language more commonly associated with coincidence evidence (s 98) than tendency evidence (s 97). However, both Simpson J and Rothman J concluded the directions were not erroneous in their overall effect and were unlikely to have misled the jury. Rothman J added that while evidence admitted solely for tendency purposes cannot later be used as coincidence evidence without satisfying the separate preconditions under s 98, any departure from strict tendency language in the direction did not, in the context of the whole summing-up, result in a miscarriage of justice. The direction as given was, if anything, more favourable to the appellant than required.

Delay direction: The trial judge directed the jury that it was dangerous to convict on the complainant's evidence unless the jury was satisfied she had given truthful and essentially accurate evidence, given the passage of many years. The summing-up also addressed the difficulties caused by fading memories and the reduced ability to test evidence after lengthy delay. The Court found these directions adequately fulfilled the requirements established by the High Court in Longman v The Queen (1989) 168 CLR 79. The Court noted that a Longman direction must be tailored to the particular facts of each case, and the directions here met that standard.

Sentence appeal: Leave to appeal against sentence was granted, but the appeal was dismissed. The Court did not find that the sentences were manifestly excessive.

Orders Made

  • Conviction appeal dismissed.
  • Leave to appeal against the sentence imposed by Karpin DCJ on 24 June 2005 granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • Tendency evidence admitted under s 97 of the Evidence Act 1995 may be used by a jury as a step toward proving that a person committed the charged offence; once admitted, the jury is not limited merely to acknowledging the tendency in the abstract.
  • Where a direction on tendency evidence uses some language associated with coincidence evidence (s 98), the Court will assess whether the overall summing-up was misleading. No miscarriage of justice arises if the direction, read as a whole, did not disadvantage the accused.
  • Evidence admitted solely on a tendency basis cannot be addressed by the Crown or summarised by a trial judge as coincidence evidence unless the separate preconditions under ss 98 and 101(2) of the Evidence Act have been satisfied and the accused has had an opportunity to be heard.
  • A Longman direction must be tailored to the specific facts of the case. The Court confirmed that no particular formula is required, provided the jury is clearly informed of the difficulties in testing evidence after lengthy delay and warned of the dangers of convicting on uncorroborated evidence in those circumstances.
  • In dismissing both the conviction and sentence appeals, the Court of Criminal Appeal confirmed that imperfect direction language will not ground a successful appeal where the summing-up, read as a whole, did not cause a miscarriage of justice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 67, 73, 61E
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW), ss 97, 98, 101

Cases:
- Longman v The Queen (1989) 168 CLR 79
- Crampton v The Queen (2000) 206 CLR 161
- Doggett v The Queen (2001) 208 CLR 343
- Weiss v R (2005) 224 CLR 300
- DPP v Boardman [1975] AC 421
- R v DRE [2006] NSWCCA 280
- R v Gardiner [2006] NSWCCA 190
- R v Ngatikaura [2006] NSWCCA 161
- Chahine v R [2006] NSWCCA 179
- R v BWT (2002) 54 NSWLR 241
- R v TWP [2006] NSWCCA 141
- R v Fletcher [2005] NSWCCA 338
- R v Ellis (2003) 144 A Crim R 1
- Wright v R [2006] NSWCCA 122
- R v Tripodina (1988) 35 A Crim R 183
- R v Williams (1990) 50 A Crim R 213
- Hutchinson v RTA [2000] NSWCA 332