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5
Court of Criminal Appeal 20 March 2008

AE v R

[2008] NSWCCA 52

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION CONVICTION QUASHED VERDICT OF ACQUITTAL ENTERED EVIDENCE TENDENCY AND OR COINCIDENCE EVIDENCE

Citation: AE v R [2008] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 20 March 2008
Judge(s): Bell JA, Hulme J, Latham J

Background

The appellant was convicted in the District Court on three counts from a 15-count indictment of sexual offences. Thirteen counts related to his stepdaughter (PNE), alleged to have occurred between 1983 and 1992 beginning when she was nine years old. Two counts related to his daughter (CNE), arising from a single alleged incident in 1995 when she was eleven.

The jury acquitted the appellant on all counts except count 11 (involving PNE) and counts 14 and 15 (involving CNE). Both complainants had first disclosed the alleged offending on the same day in February 2005, after the appellant told their mother the marriage was over.

At trial, the Crown led PNE's evidence of the alleged sexual assaults against her as tendency and/or coincidence evidence on the counts involving CNE. The appellant challenged both the consistency of the jury's verdict on count 11 and the fairness of the trial on counts 14 and 15.

  • Whether the conviction on count 11 (involving PNE) was unreasonable or inconsistent with the jury's acquittals on the remaining counts that also depended on PNE's evidence
  • Whether the admission of PNE's evidence as tendency and/or coincidence evidence on the counts involving CNE resulted in an unfair trial and a miscarriage of justice
  • Whether any proviso under s 6(1) of the Criminal Appeal Act 1912 could cure any such miscarriage

Decision

On count 11, the Court found that the guilty verdict was unreasonable when viewed against the acquittals on counts 1 to 10, 12, and 13, all of which also depended on the jury accepting PNE's evidence. The jury's acquittals on those related counts were inconsistent with returning a guilty verdict on count 11, and no rational basis existed to distinguish it. The Court substituted a verdict of acquittal.

On counts 14 and 15, the Court turned to whether PNE's evidence had been properly admitted as tendency or coincidence evidence in the trial of the charges involving CNE. Tendency evidence is evidence that a person has a tendency to act in a particular way; coincidence evidence reasons from the improbability of two similar events being unrelated. The Court found that PNE's allegations, which were themselves in dispute, could only rationally affect the likelihood of CNE's allegations being true through coincidence reasoning, making their admission problematic.

The Court found that the admission of PNE's evidence in the context of the CNE counts occasioned a miscarriage of justice. By the end of the summing-up, the trial had reached a point where, as the Crown Prosecutor conceded, an application to discharge the jury would have been warranted. No re-direction could have adequately cured the prejudice. The failure of trial counsel to seek a discharge did not alter this conclusion, because counsel had already objected to the admission of the evidence at the outset.

The proviso in s 6(1) of the Criminal Appeal Act 1912, which allows a court to dismiss an appeal despite a legal error if no substantial miscarriage of justice has actually occurred, could not be applied on the facts. Both convictions on counts 14 and 15 were set aside and a new trial ordered.

Orders Made

  • Appeal allowed
  • Verdicts and convictions on counts 11, 14, and 15 set aside
  • Verdict of acquittal substituted on count 11
  • New trial directed on counts 14 and 15

Key Takeaways

  • A conviction that is logically inconsistent with acquittals on other counts resting on the same evidence base may be set aside as unreasonable, with an acquittal substituted rather than a new trial ordered.
  • Where tendency or coincidence evidence concerns allegations that are themselves in dispute, its admission may be insufficient to withstand scrutiny if the only available reasoning chain is impermissible coincidence reasoning.
  • The Court of Criminal Appeal confirmed that a miscarriage of justice caused by improperly admitted tendency or coincidence evidence cannot necessarily be cured by jury directions alone, particularly where the prejudice is structural to the trial.
  • Trial counsel's failure to seek a discharge of the jury did not defeat the appeal where counsel had already objected to the admission of the evidence; the prejudice stemmed from the original evidentiary ruling, not from any later forensic decision.
  • The proviso under s 6(1) of the Criminal Appeal Act 1912 was unavailable where the court found a genuine miscarriage of justice, not merely a technical error with no practical consequence.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- Edwards v R (1993) 178 CLR 193
- Hoch v R (1988) 165 CLR 292
- M v R (1994) 181 CLR 487
- MFA v R [2002] HCA 53; 213 CLR 606
- Pfennig v The Queen (1995) 182 CLR 461
- R v ATM [2000] NSWCCA 475
- R v Beserick (1993) 30 NSWLR 510
- R v Ellis [2003] NSWCCA 319
- R v Heyde (1990) 20 NSWLR 235
- Zoneff v R [2000] HCA 28; 200 CLR 234