Citation: JDK v R; R v JDK [2009] NSWCCA 76
Court: NSW Court of Criminal Appeal
Date: 27 March 2009
Judge(s): McClellan CJ at CL; James J; Adams J
Background
The appellant was a close friend of the complainant's older brother. He frequently visited and stayed overnight at the complainant's family home. He was tried on five counts of sexual offences alleged to have been committed against the complainant over a period spanning 2002 to 2003, when she was between nine and eleven years of age.
The jury acquitted the appellant on the first three counts but convicted him on counts four and five. Count four alleged indecent assault involving kissing of the complainant's breasts in 2003, and count five alleged sexual intercourse (fellatio) toward the end of 2003. The appellant sought leave to appeal against those convictions out of time. The Crown did not oppose the grant of leave.
During the trial, evidence was admitted of other alleged sexual acts by the appellant against the complainant that were not the subject of any charge. This evidence was admitted as "relationship" or "context" evidence, rather than as tendency evidence. The directions the trial judge gave to the jury about the permitted use of that evidence became the central issue on appeal.
Legal Issues
- Whether the convictions on counts four and five were unreasonable or inconsistent with the acquittals on counts one, two and three
- Whether the trial judge misdirected the jury on the use it could make of the relationship or context evidence of other alleged sexual acts
- Whether the trial judge failed to give an adequate unreliability warning under s 165 of the Evidence Act 1995 in respect of the complainant's evidence
- Whether the trial judge failed to give an adequate unreliability warning under s 165 in respect of the complaint evidence given by a school friend of the complainant
Decision
Ground 1: Unreasonable or inconsistent verdicts
The Court rejected this ground. The acquittals on counts one and two were readily explained by the jury's uncertainty about whether the alleged acts occurred before or after the complainant's tenth birthday in 2002. The acquittal on count three was explicable by the lack of clarity in the complainant's evidence on that count and the absence of independent corroboration from the school friend's complaint evidence. Neither explanation required a finding that the jury had disbelieved the complainant generally. The Court confirmed that a jury may accept a witness's evidence on some counts while remaining unpersuaded on others, and that a not guilty verdict does not necessarily mean a complainant has been disbelieved.
Ground 2: Misdirection on relationship or context evidence
The Court upheld this ground and found it determinative. No objection had been taken at trial to the admission of the other-acts evidence, and no issue had been identified to justify its admission as context evidence. Without a clearly identified issue, the trial judge gave generalised directions inviting the jury to use the evidence to understand the "true nature of the relationship," which on the Crown's case was described as a sexual one from an early age. The Court held this amounted to impermissible propensity reasoning.
The trial judge compounded the problem by telling the jury they could not use the evidence "directly" to reason toward guilt, but without telling them they could not use it indirectly. The jury would likely have understood that some indirect use remained permissible. A further direction requested by defence counsel, to the effect that the jury must not reason from the other acts to guilt on the charged acts, was refused. The Court found the written and oral directions together were inadequate and exposed the jury to a real risk of impermissible reasoning. This constituted a miscarriage of justice sufficient to quash the convictions.
Ground 3: Section 165 warning regarding the complainant's evidence
The Court rejected this ground. The trial judge's caution, which directed the jury to the complainant's young age at the time of the events, the passage of time, and the risk of distortion or imprecision in her recollection, was adequate in the circumstances. The Court was not persuaded that warnings about multiple police interviews, the possibility of emotional distortion, or the opportunity for rehearsal were required, particularly where there was no factual basis to suggest rehearsal had occurred.
Ground 4: Section 165 warning regarding the school friend's complaint evidence
The Court also rejected this ground. The trial judge did direct the jury to the hearsay nature of the school friend's evidence and cautioned them to treat it carefully. The school friend was not cross-examined, so her reliability as a reporter was not in issue. Section 165 does not require any particular form of words, and the direction given was found to be adequate.
Orders Made
- Convictions on counts four and five quashed
- New trial ordered
- Application for leave to appeal against sentence not considered
Key Takeaways
- Where context or relationship evidence of uncharged sexual acts is admitted, a trial judge must identify the specific issue in the trial that justifies admission and must direct the jury clearly that the evidence cannot be used to reason toward guilt on the charged acts, either directly or indirectly.
- Describing admitted other-acts evidence as proving "the true nature of the relationship" between accused and complainant, without tying that understanding to a defined issue, invites impermissible propensity reasoning and may constitute a misdirection.
- A trial judge who tells the jury it cannot use relationship evidence "directly" to reason toward guilt, without also excluding indirect use, risks the jury understanding that some indirect propensity reasoning remains permissible.
- Inconsistent verdicts will not be treated as unreasonable where rational explanations exist for the acquittals that do not require the jury to have disbelieved the complainant across all counts.
- Under s 165 of the Evidence Act 1995, no particular form of words is required for an unreliability warning, and a warning need not be given in speculative terms unsupported by the facts in evidence.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated