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Court of Criminal Appeal 27 April 2009

Matthew Peter O'KEEFE v R; R v Matthew Peter O'KEEFE

[2009] NSWCCA 121

Sexual offences
CRIMINAL LAW EVIDENCE TENDENCY EVIDENCE WHETHER ADMISSIBLE WHETHER OVERLY PREJUDICIAL

Citation: Matthew Peter O'KEEFE v R; R v Matthew Peter O'KEEFE [2009] NSWCCA 121
Court: NSW Court of Criminal Appeal
Date: 27 April 2009
Judge(s): McColl JA, Grove J, Howie J (Howie J delivered the principal judgment; McColl JA and Grove J agreed)

Background

The appellant was tried in the District Court on eleven counts arising from a series of sexual assault offences against four women in bushland areas of suburban Sydney between January 2006 and January 2007. Each woman was attacked separately while walking or jogging on bush tracks near cycle paths. The sole issue at trial was identification: whether the appellant was the person responsible for all or any of the assaults.

The Crown's case against the appellant on the final five counts (counts 7 to 11, involving complainant JG) rested substantially on tendency or coincidence reasoning drawn from the evidence relating to the other three complainants. In other words, the Crown asked the jury to conclude that, because the appellant committed the earlier offences, he must also have been the person who attacked JG.

The appellant was convicted by the jury on all eleven counts and sentenced to a total of ten years' imprisonment with a minimum custody period of eight years. He appealed against his convictions. The Crown cross-appealed against the sentence.

  • Whether the tendency evidence (evidence of the other complainants' assaults) was sufficiently cogent to be admissible under the Evidence Act, specifically sections 97, 101, 137, and 165
  • Whether the probative value of the tendency evidence was substantially outweighed by the danger of unfair prejudice, such that it ought to have been excluded under section 101
  • Whether the trial judge provided adequate reasons for admitting the tendency evidence
  • Whether the verdicts on counts 7 to 11 were unreasonable and not supported by the evidence
  • Whether, if convictions were quashed, a retrial should be ordered on counts 1 to 6 or verdicts of acquittal entered

Decision

Howie J found that the tendency evidence should have been excluded in respect of the JG offences. For tendency or coincidence evidence to support the required reasoning, it must be sufficiently probative that its value substantially outweighs the risk of unfair prejudice. In this case, the court found that threshold was not met for the JG counts.

Without the tendency evidence, the remaining evidence on counts 7 to 11 was insufficient to prove beyond reasonable doubt that the appellant was the offender. JG had identified a different person, and the appellant's conversations with police at the station could not, in the court's view, be found to constitute admissions of each of the four incidents put to him. On that basis, the court held that the jury ought to have returned verdicts of not guilty on counts 7 to 11.

In respect of counts 1 to 6, Howie J accepted that the case against the appellant on those counts was strong. However, the court declined to apply the proviso (which allows an appellate court to dismiss an appeal despite an error where no substantial miscarriage of justice has occurred) because the presence of JG's evidence and the counts relating to her before the jury could not be ruled out as having affected the verdicts on the earlier counts. A retrial was therefore ordered on counts 1 to 6.

Because the conviction appeal was allowed and all convictions quashed, the court did not need to rule on the Crown's sentence appeal. Howie J noted, however, that a sentencing court on retrial should not feel bound by the original sentences, observing that concurrent sentences for offences committed against different complainants were difficult to justify on their face.

Orders Made

  • The appeal against the convictions is allowed and the convictions quashed
  • The sentences imposed in the District Court are quashed
  • On counts 7 to 11, a verdict of acquittal is entered
  • A retrial is ordered on counts 1 to 6

Key Takeaways

  • Where a Crown case on particular counts relies substantially or exclusively on tendency or coincidence reasoning derived from other counts, the tendency evidence must clear a high probative threshold before it can properly support a conviction on those counts.
  • Under sections 97 and 101 of the Evidence Act, tendency evidence must have significant probative value that substantially outweighs the danger of unfair prejudice; failure to meet that standard requires exclusion.
  • The Court of Criminal Appeal confirmed that inadequate identification evidence (including a complainant identifying a different person) and equivocal conversations with police are insufficient, without more, to establish identity beyond reasonable doubt.
  • Even where an appellate court regards the evidence on some counts as overwhelming, the proviso against ordering a retrial will not be applied if contamination from improperly admitted evidence relating to other counts cannot be excluded.
  • A sentencing court on retrial is not bound by the original sentences; the Court of Criminal Appeal signalled that imposing concurrent sentences for offences committed against separate complainants requires justification.

Legislation and Cases Referenced

Legislation:
- Evidence Act (NSW), ss 97, 101, 137, 165

Cases:
- R v Fletcher [2005] NSWCCA 338
- R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
- Pfenning v The Queen (1995) 182 CLR 461
- House v The King (1936) 55 CLR 499
- R v Nassif [2004] NSWCCA 433