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Court of Criminal Appeal 2 September 2010

R v Jennings

[2010] NSWCCA 193

Sexual offences
CRIMINAL LAW TENDENCY AND COINCIDENCE EVIDENCE INCIDENCE EVIDENCE.

Citation: R v Jennings [2010] NSWCCA 193
Court: NSW Court of Criminal Appeal
Date: 2 September 2010
Judge(s): McClellan CJ at CL, James J, Latham J

Background

The accused, a priest who served as Dean of Discipline at a Catholic boarding school in 1960 and 1961, faced six counts of indecent assault involving four complainants. All six allegations followed a similar pattern: the accused allegedly entered the dormitory after lights out, approached a sleeping boy's bed, and placed his hand under the bedcovers to touch the boy. Counts 1 to 5 involved alleged genital fondling; count 6 involved the rubbing of a boy's thigh on the outside of his pyjamas.

At trial in the District Court before Toner SC DCJ, an initial ruling on 21 July 2010 allowed the Crown to use the evidence of each complainant as tendency and coincidence evidence in relation to the counts concerning the others. That ruling was based on the striking similarities between the accounts and the contemporaneous nature of the alleged conduct.

At the close of the defence case, counsel for the accused submitted that the evidence had unfolded differently from what was anticipated, and that the judge should revoke the earlier ruling. The judge accepted that submission on 30 July 2010, just before addresses and the summing up. The Crown appealed that revocation under s 5F(3A) of the Criminal Appeal Act 1912.

  • Whether the trial judge erred in revoking the earlier ruling that permitted the Crown to use the evidence of three complainants (HP, DP and TL) as tendency and coincidence evidence on count 6, and to use the evidence of the fourth complainant (RL) as tendency and coincidence evidence on counts 1 to 5.
  • Whether the judge correctly applied the concept of "prejudicial effect" under the relevant evidentiary provisions governing tendency and coincidence evidence.
  • Whether the Crown was obliged to put the alleged tendency directly to the accused in cross-examination before a tendency direction could be given to the jury.

Decision

Latham J (with whom McClellan CJ at CL and James J agreed) held that the judge had misconstrued the meaning of "prejudicial effect" in the relevant provision. The respondent's counsel effectively conceded this on appeal, acknowledging that the prejudice relied upon went no further than what the Crown sought to prove as part of its own case. The Court found that neither use of the tendency evidence, whether to establish the sexual character of the conduct in count 6 or to support identification on counts 1 to 5, was disconnected from the issues in dispute. On the contrary, both uses went to the heart of the matters the jury had to decide.

The Court also rejected the argument that the Crown was obliged to put the alleged tendency to the accused in cross-examination before a tendency direction could properly be given. There was no rule of procedure or fairness imposing that obligation, and the accused was not under any misapprehension about the nature of the Crown case or the tendency alleged against him.

The Court further rejected the proposition that the accused's own unchallenged evidence that he had no sexual interest in adolescent boys prevented the jury from reaching the opposite conclusion. An uncontradicted assertion of that kind would not, after a properly crafted tendency and coincidence direction, foreclose a jury from finding the tendency established.

The revocation had materially weakened the prosecution case on all counts. Without RL's evidence, the Crown's case on identity for counts 1 to 5 was undermined; without the evidence of HP, DP and TL, the Crown's case on whether the touching of RL was indecent for count 6 was substantially weakened.

Orders Made

  • The ruling made by Toner SC DCJ on 30 July 2010 is vacated.

Key Takeaways

  • The Court of Criminal Appeal confirmed that "prejudicial effect" for the purposes of tendency and coincidence evidence does not extend to prejudice that is simply the natural consequence of a complainant's evidence going to a core issue in the trial.
  • A trial judge retains power to revoke an earlier evidentiary ruling, but the Court found that revoking a tendency evidence ruling in these circumstances involved a misapplication of the statutory test.
  • No procedural rule requires the Crown to put an alleged tendency directly to an accused in cross-examination as a precondition to seeking a tendency direction.
  • An accused's own assertion in evidence that they did not have the relevant tendency does not, of itself, prevent a jury from finding that tendency established after receiving a proper direction.
  • Under s 5F(3A) of the Criminal Appeal Act 1912, the Crown may appeal a ruling that revokes an earlier finding on the admissibility of evidence, provided the ruling substantially weakens the prosecution case. The Court confirmed that standard was satisfied here.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3A)

Cases:
- R v Harker [2004] NSWCCA 427