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Court of Criminal Appeal 9 August 2010

RG v R

[2010] NSWCCA 173

Sexual offences
CRIMINAL LAW OFFENCES AGAINST THE PERSON SEXUAL OFFENCES AGGRAVATED INDECENT ASSAULT VICTIM UNDER AGE OF 16 YEARS CRIMINAL LAW

Citation: RG v R [2010] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 9 August 2010
Judge(s): Campbell JA, Simpson J, Whealy J

Background

The appellant was the father of two daughters. Following the breakdown of his marriage in 1996 and a period of no contact, Family Court orders from around 1999 restored his contact with the girls, who stayed with him on alternate weekends and during school holidays.

The appellant was convicted after jury trial of one charge of aggravated indecent assault under s 61M(1) of the Crimes Act 1900. The circumstance of aggravation was that the complainant (his elder daughter) was under 16 years of age at the time. She was just short of 12 years old when the offending occurred in July 2003. The appellant was sentenced to imprisonment for 4.5 years with a non-parole period of 2.5 years.

The complainant gave evidence that on the night in question, while the three of them lay on a mattress at the appellant's sister's home in Picton, the appellant placed his hands inside her pyjama pants and underwear and rubbed the outside of her vagina for approximately two minutes. She also gave evidence of a broader pattern of behaviour during contact visits, including the sleeping and showering arrangements and the appellant touching her breasts and legs on most nights. It was this broader background evidence that formed the sole ground of appeal.

  • Whether the trial judge erred by failing to adequately distinguish between tendency evidence and context (or relationship) evidence in the directions given to the jury.
  • Whether the impugned evidence was admitted as tendency evidence in a manner inconsistent with ss 97 and 101 of the Evidence Act 1995 (NSW), which impose specific requirements before tendency evidence may be led.
  • Whether the directions given to the jury were sufficient to limit any risk of misuse of that evidence.

Decision

The Court rejected the single ground of appeal. Simpson J (with whom Campbell JA and Whealy J agreed) found that the evidence of the appellant's broader pattern of conduct, including the sleeping arrangements, showering, and touching on other occasions, was admitted not to establish a tendency on his part but to provide context for the charged event. That distinction is legally significant: tendency evidence is subject to strict statutory requirements under ss 97 and 101 of the Evidence Act, while context or relationship evidence operates differently.

The evidence, if accepted by the jury, explained why the complainant did not cry out, did not immediately report the assault, and appeared relatively unsurprised by the conduct. Without this background, the jury might have found her reaction implausible or her account unconvincing. The Court found that this was a proper basis for its admission.

The trial judge gave clear directions to the jury that the background evidence was not to be used as tendency evidence. The Court noted that the way the evidence was treated throughout the trial, including by defence counsel's own references to it as "contextual evidence", confirmed that all parties understood it was not being led or used for tendency purposes. The premise underpinning the ground of appeal was therefore not established.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that evidence of a pattern of conduct between an accused and a complainant can be properly admitted as context or relationship evidence without engaging the statutory requirements for tendency evidence under ss 97 and 101 of the Evidence Act 1995 (NSW).
  • Context evidence of this kind is admissible to explain a complainant's behaviour in response to a charged act, particularly where that behaviour, such as not reporting or not resisting, might otherwise appear implausible or inconsistent to a jury.
  • Clear judicial directions restricting the jury's use of such evidence to its context purpose are essential, and the adequacy of those directions will be scrutinised on appeal.
  • No error was established in the trial judge's directions where the evidence had been uniformly treated by all parties throughout the trial as context rather than tendency evidence.
  • In dismissing the appeal, the Court reinforced the importance of accurately identifying the basis upon which background conduct evidence is admitted, so that appropriate and targeted jury directions can be crafted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(1)
- Evidence Act 1995 (NSW), ss 97, 101, 135, 137

Cases:
- DJV v R [2008] NSWCCA 272
- JDK v R; R v JDK [2009] NSWCCA 76; 194 A Crim R 333
- Qualtieri v The Queen [2006] NSWCCA 95; 171 A Crim R 463
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308