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5
Court of Criminal Appeal 21 November 2007

R v GAC

[2007] NSWCCA 315

Also reported as (2007) 178 A Crim R 408
Public order & justice offences
PRACTICE AND PROCEDURE CROWN APPEAL AGAINST RULING ON EVIDENCE S 5F(3A) CRIMINAL APPEAL ACT JURISDICTIONAL REQUIREMENT NO ERROR SHOWN.

Citation: R v GAC [2007] NSWCCA 315
Court: Court of Criminal Appeal, New South Wales
Date: 21 November 2007
Judge(s): Giles JA; Hulme J; Hislop J

Background

The respondent faced two charges in the District Court of sexual offences against a 12-year-old girl, committed between November and December 2006. The Crown sought to adduce tendency evidence consisting of facts sheets and witness statements from the respondent's 1997 guilty pleas to sexual offences against two other children, committed years earlier.

At a pre-trial voir dire, the trial judge (Neilson DCJ) excluded the proposed tendency evidence. The judge ruled that its probative value did not substantially outweigh the risk of unfair prejudice, finding a real risk the jury would misuse the evidence in a way that directions from the bench could not adequately address.

The Director of Public Prosecutions appealed to the Court of Criminal Appeal under s 5F(3A) of the Criminal Appeal Act 1912. That provision allows the Crown to appeal a ruling that excludes evidence, but only where the exclusion "substantially weakens the prosecution's case."

  • Whether the Court of Criminal Appeal had jurisdiction under s 5F(3A): specifically, whether the exclusion of evidence "substantially weakens the prosecution's case" when no trial is yet underway and the excluded evidence would have been tendency evidence.
  • What constitutes "the prosecution's case" for the purposes of that jurisdictional threshold where the trial remains a future event.
  • Whether credibility or reliability of the prosecution's other evidence is relevant when assessing substantial weakening.
  • Whether the trial judge erred in holding that the probative value of the tendency evidence did not substantially outweigh its prejudicial effect.

Decision

Jurisdiction under s 5F(3A): substantial weakening

The Court addressed how to assess "substantial weakening" when no trial is in progress. It held that the prosecution's case, for jurisdictional purposes, is taken as the evidence the Crown proposes to call, assessed on the assumption that it would be accepted. The court does not, at this stage, evaluate the credibility or reliability of the other evidence available to the Crown.

The Court further held that even where the Crown's remaining evidence, if accepted, would be capable of establishing the commission of the offence, the exclusion of the tendency evidence could still substantially weaken the prosecution's case. The tendency evidence was not merely cumulative; its removal left a materially weaker evidentiary foundation. The jurisdictional threshold was therefore satisfied, and the Court proceeded to consider the merits.

Whether the trial judge erred on probative value versus prejudicial effect

The Court of Criminal Appeal examined whether the trial judge had made an error of the kind required to justify appellate intervention in what is an exercise of discretion or evaluative judgment. The trial judge had identified a real risk that the jury would engage in impermissible propensity reasoning, and concluded that no direction could satisfactorily cure that risk, given the nature of the earlier offending and the inflammatory quality of the evidence.

The Court of Criminal Appeal found no error in that reasoning. It was open to the trial judge to conclude that prejudice was not amenable to adequate direction, and the Crown had not demonstrated any specific error in the evaluation. The appeal was accordingly dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 5F(3A) of the Criminal Appeal Act 1912, "substantial weakening" of the prosecution's case is a jurisdictional requirement for a Crown appeal against the exclusion of evidence. The Court of Criminal Appeal confirmed this threshold can be satisfied even where no trial is yet on foot, and even where the remaining evidence, if accepted, could establish the offence.
  • In assessing whether excluded evidence substantially weakens the prosecution's case for s 5F(3A) purposes, the court proceeds on the assumption that the other evidence in the Crown's case would be accepted. Questions of credibility and reliability of that other evidence are not considered at this jurisdictional stage.
  • A ruling on tendency evidence under the test requiring probative value to substantially outweigh prejudicial effect involves an exercise of discretion or evaluative judgment. Appellate intervention requires demonstrated error of the relevant kind, not merely a preference for a different outcome.
  • No error was established in the trial judge's conclusion that the tendency evidence carried a real risk of unfair prejudicial misuse that judicial directions could not adequately address.
  • In dismissing the appeal, the Court of Criminal Appeal reinforced that a finding of strong prejudicial effect can stand even where the trial judge did not separately catalogue every possible direction that might have been given, provided the judge's reasoning reflects a genuine assessment of that risk.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Children (Criminal Proceedings) Act 1987 (NSW), s 11
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1)

Cases
- Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653
- Em v The Queen [2007] HCA 46
- Gilbert v The Queen (2000) 201 CLR 414
- House v The King (1936) 55 CLR 499
- Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51
- Papakosmas v The Queen (1999) 196 CLR 297
- Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41
- R v BD (1997) 94 A Crim R 131
- R v Blick (2000) 111 A Crim R 326
- R v Carusi (1997) 92 A Crim R 52
- R v Cook [2004] NSWCCA 52
- R v ELD [2004] NSWCCA 219
- R v Ellis (2003) 58 NSWLR 700
- R v Fletcher (2005) 156 A Crim R 308
- R v Milakovic [2004] NSWCCA 199
- R v Milton [2004] NSWCCA 195
- R v Nassif [2004] NSWCCA 443
- R v Ngatikaura [2006] NSWCCA 161
- R v RN [2005] NSWCCA 413
- R v Shamouil (2006) 66 NSWLR 228
- R v SJRC [2007] NSWCCA 142
- R v Watkins (2005) 153 A Crim R 434
- R v Zhang (2005) 158 A Crim R 504