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Court of Criminal Appeal 30 October 2008

R v Smith

[2008] NSWCCA 247

Also reported as (2008) 190 A Crim R 8
Sexual offences
CROWN APPEAL TENDENCY EVIDENCE

Citation: R v Smith [2008] NSWCCA 247
Court: New South Wales Court of Criminal Appeal
Date: 30 October 2008
Judge(s): McClellan CJ at CL; Blanch J; Hislop J

Background

The respondent faced trial in the District Court on multiple counts of sexual offences against a child, TM, alleged to have occurred across three separate occasions when she was between seven and eleven years old. The offending was alleged to have taken place during sleepovers at the respondent's home, where TM and other children were sleeping in the lounge room. The charges included aggravated indecent assault and sexual intercourse with a child under ten, contrary to the Crimes Act 1900.

The Crown sought to adduce tendency evidence from a second complainant, TG, who had previously been the subject of a successful conviction against the respondent for aggravated indecent assault. TG's evidence described a materially similar pattern: she was a friend of the respondent's daughter, had attended a sleepover at his home, fell asleep in the lounge room after watching a movie, and was woken during the night when the respondent pulled down her pants and digitally touched her vagina. He told her not to tell anyone.

The trial judge excluded the tendency evidence under both sections 97 and 98 of the Evidence Act 1995, finding that while the surrounding circumstances were largely identical, the actual allegations of indecency were not sufficiently similar because TG's evidence did not include allegations of touching other parts of her body, unlike TM's account. The Crown appealed that ruling under section 5F(3A) of the Criminal Appeal Act 1912.

  • Whether TG's evidence met the threshold of "significant probative value" required for admission as tendency evidence under section 97 of the Evidence Act 1995
  • Whether TG's evidence was sufficiently similar to TM's account for admission as coincidence evidence under section 98 of the Evidence Act 1995
  • Whether the exclusion of the tendency and coincidence evidence "eliminated or substantially weakened" the prosecution case within the meaning of section 5F(3A) of the Criminal Appeal Act 1912, so as to enliven the Crown's right of appeal

Decision

The Court of Criminal Appeal held that the trial judge erred in his application of the tendency evidence provisions. The court found there were eight significant similarities between the accounts of TM and TG, including the ages of the girls, their relationship to the respondent's daughter, the sleepover setting, the lounge room location, the presence of other sleeping children, the method of waking the complainants, the nature of the touching, and the instruction given afterward not to tell anyone. These similarities were sufficient to establish significant probative value.

The trial judge's error lay in treating the absence of allegations concerning other parts of TG's body as a disqualifying difference, rather than focusing on the strong commonality of circumstances and the overlapping core conduct. The court found the evidence clearly possessed significant probative value, and that conclusion was not the product of a finely balanced assessment. The question of whether probative value substantially outweighed any unfair prejudice under section 101(2) was left to be determined by the trial judge in light of the evidence as it unfolded at trial.

On the Crown's right to appeal, the court applied the test articulated in R v Shamouil (2006) 66 NSWLR 228, asking whether the ruling would substantially weaken the prosecution case on the assumption the jury accepted the excluded evidence. The court found that without the tendency evidence, the Crown's case rested almost entirely on TM's account alone, and her credibility was vulnerable to attack on the basis that she had not raised an alarm during the alleged incidents. Exclusion of the tendency evidence therefore substantially weakened the prosecution case, satisfying the threshold under section 5F(3A).

Orders Made

  • Appeal allowed
  • Ruling made by the trial judge vacated

Key Takeaways

  • The Court of Criminal Appeal confirmed that tendency evidence under section 97 of the Evidence Act 1995 requires "significant probative value," and that this threshold is assessed by examining the totality of similarities, not solely the specific acts of indecency alleged.
  • A trial judge errs by focusing on points of difference between tendency evidence and the charges at trial where the surrounding circumstances and pattern of conduct share multiple, strong similarities with the complainant's account.
  • Under the test in R v Shamouil, whether exclusion "substantially weakens" a prosecution case is assessed by asking what effect the ruling would have if the jury accepted the excluded evidence, provided that evidence was fit to be left to a jury.
  • Where a prosecution case depends primarily on a complainant's uncorroborated evidence, and the excluded tendency evidence would have provided meaningful support for that account, exclusion is capable of substantially weakening the Crown case within the meaning of section 5F(3A) of the Criminal Appeal Act 1912.
  • The right to appeal under section 5F(3A) is one to be exercised with restraint, as the Court of Criminal Appeal endorsed in R v GAC, though the threshold was met on the facts of this case.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 61J, 66A
- Evidence Act 1995 (NSW), ss 97, 98, 101(2)

Cases:
- R v Fletcher (2005) 156 A Crim R 308
- R v Harker [2004] NSWCCA 427
- R v Milton [2004] NSWCCA 195
- R v GAC [2007] NSWCCA 315
- R v Shamouil (2006) 66 NSWLR 228
- R v SJRC [2007] NSWCCA 142