Citation: DJV v R [2008] NSWCCA 272
Court: NSW Court of Criminal Appeal
Date: 19 November 2008
Judge(s): McClellan CJ at CL; Hidden J; Fullerton J
Background
The appellant was convicted in the District Court on two counts of sexual offences against his daughter, who was aged 13 or 14 at the relevant times. The offences were alleged to have occurred during periods when the complainant stayed with the appellant following his separation from her mother. He was sentenced to nine years' imprisonment on the first count and a concurrent fixed term of five years on the second.
Beyond the direct evidence relating to the two charged counts, the Crown led evidence from the complainant about a broader pattern of alleged sexual misconduct stretching back to when she was five or six years old, a separate alleged assault during a camping trip to the Daintree, and occasions when the appellant had allegedly watched her through a window while she showered. This material had originally been the subject of tendency notices under s 97 of the Evidence Act 1995, but it was ultimately tendered at trial as "relationship" or "context" evidence rather than as tendency evidence proper.
The appellant denied the offences and gave evidence at trial. He appealed on grounds that included the improper admission of the context evidence, the consequences of erroneous submissions by the prosecutor and misdirections by the trial judge, and the absence of a proper direction requiring the jury to be satisfied beyond reasonable doubt before using uncharged-act evidence as tendency evidence.
Legal Issues
- Whether the uncharged-acts evidence was properly admitted as "context" or "relationship" evidence, given the requirements of the Evidence Act 1995 (including ss 97, 101, 135 and 137)
- Whether the trial judge misdirected the jury on the permissible use that could be made of that evidence
- Whether erroneous submissions by the Crown prosecutor compounded any error in the admission and direction on that evidence
- Whether any of these errors constituted a miscarriage of justice such that the conviction could not stand
Decision
McClellan CJ at CL (with Hidden J and Fullerton J agreeing) held that the disputed evidence should not have been admitted. Although commonly labelled "relationship" or "context" evidence, such evidence remains in substance tendency evidence and must satisfy the requirements of the Evidence Act 1995. A critical precondition is that the evidence be relevant to a genuine issue in the trial. The Court found that it was not apparent from the trial that the context framing relied upon by the Crown (that the jury might otherwise view the charged acts as isolated and occurring without reason) actually arose as a live issue.
The errors did not stop at admission. The Crown prosecutor's address and the trial judge's summing-up both went beyond the confined purpose for which the evidence had been admitted. The jury was invited to use the material in ways that were inconsistent with the basis on which it was tendered, and no proper directions were given requiring the jury to be satisfied beyond reasonable doubt before drawing any tendency-based inference from the uncharged acts.
The Court declined to apply the proviso (the principle that an otherwise sound conviction can sometimes be upheld despite a trial irregularity). The improperly admitted evidence would plainly have been significant to the jury's assessment of the complainant's account and the appellant's credibility. A fair trial according to law had not taken place, and the convictions were quashed.
Orders Made
- Appeal upheld
- Conviction quashed
- Matter remitted to the District Court for a new trial
Key Takeaways
- Evidence of uncharged acts tendered as "context" or "relationship" evidence remains subject to the tendency evidence provisions of the Evidence Act 1995, including the requirement that it be relevant to a genuine issue at trial, not merely labelled differently to avoid those provisions.
- Where the basis for admitting context evidence does not reflect a live issue in the proceedings, admission of that evidence constitutes an error capable of producing a miscarriage of justice.
- Erroneous submissions by counsel and misdirections by a trial judge on the permissible use of context evidence can independently ground a finding of miscarriage, particularly where no objection was raised at the time but the directions departed from the admitted scope of the evidence.
- Under the Evidence Act 1995, before a jury may use uncharged-acts evidence as tendency evidence, a direction is required that the jury must be satisfied of that evidence beyond reasonable doubt.
- In dismissing any application of the proviso, the Court of Criminal Appeal emphasised that where improperly admitted evidence would plainly have influenced the jury's assessment of the central witnesses, the conviction cannot be allowed to stand.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 97, 101, 135, 137
- Crime (Sexual Assault) Amendment Act 1981 (NSW)
Cases:
- HML v R [2008] HCA 16; (2008) 245 ALR 204
- Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463
- AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
- CTM v The Queen [2008] HCA 25
- Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
- Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
- R v AH (1997) 42 NSWLR 702
- R v Beserick (1993) 30 NSWLR 510
- R v Ellis (2003) 58 NSWLR 700
- R v Hagerty [2004] NSWCCA 89; (2004) 145 A Crim R 138
- R v TAB [2002] NSWCCA 274
- R v RNM [2005] NSWCCA 396
- MM [2000] NSWCCA 78; (2000) 112 A Crim R 519
- Toki [2000] NSWSC 999; (2000) 116 A Crim R 536
- R v Fraser (NSWCCA, unreported, 10 August 1998)
- R v M, RB [2007] SASC 207; (2007) 172 A Crim R 73