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48
Court of Criminal Appeal 17 December 2009

Ford v R

[2009] NSWCCA 306

Also reported as (2009) 201 A Crim R 451 (2009) 273 ALR 286
Sexual offences
EVIDENCE TENDENCY SECTION 97 EVIDENCE ACT WHAT AMOUNTS TO TENDENCY EVIDENCE TEST FOR RELEVANCE OF TENDENCY EVIDENCE APPEAL AND NEW TRIAL

Citation: Ford v R [2009] NSWCCA 306
Court: New South Wales Court of Criminal Appeal
Date: 17 December 2009
Judges: Campbell JA; Howie J; Rothman J

Background

The respondent faced a District Court trial on a charge of sexual intercourse without consent involving a complainant referred to as TL. The Crown also held charges relating to two other complainants, AG and ZM, concerning separate alleged indecent assaults. The Crown sought to rely on statements from AG and ZM as tendency evidence in the TL trial, serving a formal notice under s 97 of the Evidence Act 1995.

Following a voir dire (a preliminary hearing to determine the admissibility of evidence), the trial judge, Sorby DCJ, ruled on 20 October 2009 that the evidence from AG and ZM was not admissible at the TL trial. The Crown appealed that ruling under s 5F(3A) of the Criminal Appeal Act 1912, on the basis that the ruling eliminated or substantially weakened the prosecution's case.

The proceedings had a complicated history in the District Court, involving confusion about earlier rulings made by Sorby DCJ in September 2008 and a subsequent ruling by a different judge, Berman DCJ. That procedural confusion formed a significant part of the Court of Criminal Appeal's considerations.

  • Whether the evidence from AG and ZM constituted tendency evidence within the meaning of s 97 of the Evidence Act 1995
  • Whether tendency evidence must show a tendency to commit acts that are themselves similar to the criminal activity alleged, or whether a tendency that is less directly connected to the charged conduct can still satisfy the section
  • What degree of specificity is required of tendency evidence to meet the relevance and significant probative value tests under s 97
  • What standard of appellate review applies to a trial judge's decision on the admissibility of tendency evidence under s 5F of the Criminal Appeal Act, specifically whether the test in House v The King (1936) or Warren v Coombes (1979) governs
  • Whether a s 5F appeal to the Court of Criminal Appeal is an appeal by way of rehearing

Decision

All three judges agreed that Sorby DCJ's ruling should be vacated. The Court found that his Honour's reasoning for excluding the evidence was unsustainable. In particular, Sorby DCJ's conclusion that the evidence did not disclose a tendency within the meaning of s 97(1)(a) was plainly wrong and could not stand on any basis of appellate review.

Campbell JA provided detailed reasons addressing the nature of tendency evidence and the proper approach to s 97. His Honour's analysis confirmed that tendency evidence does not need to demonstrate a tendency to commit acts that are themselves identical or closely similar to the specific offence charged. The inquiry focuses on whether the evidence reveals a relevant tendency that has significant probative value in relation to the facts in issue.

On the standard of appellate review, Howie J and Rothman J declined to resolve definitively whether House v The King or Warren v Coombes governs s 5F appeals. Both judges considered it unnecessary to settle that question because, on any applicable standard, the error below was manifest.

Given the procedural confusion that had plagued the District Court proceedings, and the fact that the trial was imminent, the Court moved beyond simply vacating the ruling. It substituted its own ruling declaring the evidence admissible, adopting the approach Berman DCJ had previously taken when he was the assigned trial judge.

Orders Made

  • The ruling made by Sorby DCJ on 20 October 2009 was vacated
  • In lieu of that ruling, the Court ruled that the evidence in the statements of AG and ZM is admissible at the trial of the respondent on the charge of sexual intercourse with TL without consent on 14 January 2007
  • The Solicitor for Public Prosecutions was directed to notify the Registrar of the Court, and Campbell JA's Associate, in writing, promptly after the trial concluded

Key Takeaways

  • Tendency evidence under s 97 of the Evidence Act 1995 does not require the tendency identified to be a tendency to commit acts that are themselves the same as, or closely similar to, the specific criminal conduct charged.
  • The Court of Criminal Appeal confirmed that, on any available standard of appellate review under s 5F of the Criminal Appeal Act 1912, a ruling that is manifestly unsustainable will be set aside, even without resolving whether House v The King or Warren v Coombes supplies the governing test.
  • Howie J and Rothman J expressly reserved the question of whether a s 5F appeal permits the Court of Criminal Appeal to undertake its own independent evaluation of the probative value of evidence, as distinct from simply determining whether evidence does or does not disclose a relevant tendency.
  • Where prolonged procedural confusion in the trial court risks further prejudice to the administration of justice, the Court of Criminal Appeal may substitute its own admissibility ruling rather than remit the question to the trial judge.
  • A trial judge presiding over sexual assault proceedings to which s 130A of the Criminal Procedure Act 1986 applies must articulate evidentiary rulings clearly and with stated reasons, given the binding effect those rulings may have on subsequent trial judges.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 97
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 130A

Key Cases:
- House v The King (1936) 55 CLR 499
- Warren v Coombes (1979) 142 CLR 531
- Pfennig v The Queen (1995) 182 CLR 461
- Papakosmas v The Queen (1999) 196 CLR 297
- Em v The Queen (2007) 232 CLR 67
- Elliott v The Queen (2007) 234 CLR 38
- R v Shamouil (2006) 66 NSWLR 228
- R v Ellis (2003) 58 NSWLR 700
- Kocer v R [2006] NSWCCA 328
- Fox v Percy (2003) 214 CLR 118
- Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194