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Court of Criminal Appeal 20 March 2008

RODDEN v REGINA

[2008] NSWCCA 53

Also reported as (2008) 182 A Crim R 227
Sexual offences
CRIMINAL LAW EVIDENCE ADMISSIBILITY TENDENCY EVIDENCE RELATIONSHIP EVIDENCE INADEQUACY OF DIRECTIONS BY TRIAL JUDGE

Citation: Rodden v Regina [2008] NSWCCA 53
Court: Court of Criminal Appeal, New South Wales
Date: 20 March 2008
Judges: Beazley JA, Hall J, Fullerton J

Background

The appellant was the former de facto partner of the complainant's mother. He lived with the family from 1998 until May 2005, during which time the complainant was a child. Following the breakdown of the relationship, the complainant disclosed to her mother a history of alleged sexual interference by the appellant, and police were notified.

Investigating police arranged for the complainant to make recorded telephone calls to the appellant in September 2005. During those "pretext conversations," the appellant made statements that were capable of being understood as admissions. He was subsequently arrested and charged with five counts of sexual offences against the complainant under the Crimes Act 1900, including aggravated sexual intercourse with a child and aggravated indecent assault.

The appellant was tried in the Lismore District Court in November 2006, convicted on all five counts, and sentenced to an aggregate term of eight years with a five-year non-parole period. He appealed on grounds relating to the adequacy of the trial judge's directions to the jury.

  • Whether the trial judge gave adequate directions to the jury concerning the use of the pretext telephone conversation as tendency (propensity) evidence
  • Whether the trial judge gave adequate directions concerning the use of relationship evidence, which described the ongoing domestic context between the appellant and the complainant
  • Whether any deficiencies in those directions resulted in a substantial miscarriage of justice
  • Whether the proviso should be applied to preserve the convictions despite any identified errors, noting that trial counsel had not sought further directions at the time

Decision

The Court identified two categories of problematic evidence that required careful judicial direction. The first was the appellant's statements in the pretext telephone conversation of 14 September 2005, which the Crown used as tendency evidence to prove a disposition to offend against the complainant. The second was the relationship evidence, which described the appellant's domestic arrangements with the complainant's family and carried significant potential for prejudice.

Hall J, with whom Beazley JA and Fullerton J agreed, found that the trial judge's directions were materially inadequate in both respects. The jury was not given sufficient guidance on the limited purpose for which the tendency evidence could be used, nor on the limitations applicable to the relationship evidence. This was particularly significant because the complainant's evidence was otherwise unsupported, making the pretext conversation central to the Crown case.

The Court acknowledged that trial counsel had not sought further or corrective directions at the time, which required careful consideration of whether the proviso should apply to save the convictions. However, the Court concluded that the errors were not ones that could be characterised as having no significance on the jury's verdict. The evidence that lacked proper direction was potentially highly prejudicial, and the Court could not be satisfied that the trial had been conducted according to law.

In those circumstances, the Court found a substantial miscarriage of justice had occurred. All three judges agreed that the convictions should be set aside and a new trial ordered.

Orders Made

  • Appeal upheld
  • Convictions entered on 13 November 2006 are set aside
  • Pursuant to s 8(1) of the Criminal Appeal Act 1912, a new trial is ordered

Key Takeaways

  • Adequate jury directions on the use of tendency evidence and relationship evidence are essential, particularly in trials where the complainant's evidence is not otherwise corroborated.
  • Where tendency and relationship evidence carries significant prejudicial potential, failure to give proper limiting directions can constitute a material misdirection sufficient to warrant setting aside convictions.
  • The fact that trial counsel did not seek further directions does not preclude an appeal court from finding a substantial miscarriage of justice, where the errors are sufficiently serious and the verdict may have been affected.
  • The Court of Criminal Appeal declined to apply the proviso where it could not conclude that the misdirections had no significance in determining the verdicts returned by the jury.
  • A new trial, rather than an acquittal, was the appropriate remedy where the deficiency lay in the manner of the trial rather than in any insufficiency of evidence to support the charges.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 66C(2), 66C(4)
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW), s 8(1)

Cases:
- B v The Queen (1992) 175 CLR 599
- BRS v The Queen (1997) 191 CLR 275
- DRE v Regina [2006] NSWCCA 280
- Gipp v The Queen (1998) 194 CLR 106
- KBT v The Queen (1997) 191 CLR 417
- Libke v The Queen (2007) 235 ALR 517
- M v The Queen (1994) 181 CLR 487
- Qualtieri v Regina [2006] NSWCCA 95
- Regina v AH (1997) 42 NSWLR 702
- Regina v Ellis (2003) 58 NSWLR 700
- Regina v Hagarty [2004] NSWCCA 89
- Weiss v The Queen (2005) 224 CLR 300
- Mraz v The Queen (1955) 93 CLR 493