AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
9
Court of Criminal Appeal 6 September 2010

ES v R (No.1)

[2010] NSWCCA 197

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULT OF A CHILD WHETHER PROVISO SHOULD BE APPLIED.

Citation: ES v R (No.1) [2010] NSWCCA 197
Court: NSW Court of Criminal Appeal
Date: 6 September 2010
Judge(s): Hodgson JA; Whealy J; Buddin J

Background

The appellant was convicted in the District Court on four counts of indecent assault against a complainant who was under 16 years of age at the times alleged. The offences were said to have occurred at various locations in NSW between 1972 and 1979, when the appellant was living with the complainant's mother in the family home. The complainant did not report the conduct to police until 2007.

At trial, the Crown led evidence from the complainant's elder sister (referred to as K) about uncharged acts of a similar nature allegedly committed by the appellant against her. This evidence was admitted over objection from the defence.

The jury convicted the appellant on four of the seven counts and acquitted him on the remaining three. The appellant was sentenced to terms of imprisonment across the four counts, with his last non-parole period expiring in January 2010 and the final sentence due to expire in October 2010.

  • Whether the evidence of K (relating to uncharged acts against a third party) was properly admitted as tendency evidence under ss 97 and 101 of the Evidence Act 1995
  • Whether, if not admissible as tendency evidence, the evidence was nonetheless admissible as context evidence
  • Whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the appellant
  • Whether the proviso under s 6 of the Criminal Appeal Act 1912 should be applied to preserve the convictions despite any error
  • Whether the appropriate remedy was a directed verdict of acquittal or an order for a new trial

Decision

The Court of Criminal Appeal found that K's evidence had been wrongly admitted. The requirements for admitting tendency evidence under ss 97 and 101 of the Evidence Act 1995 had not been satisfied at the time the evidence was received. In particular, the Court held that the trial judge had not properly assessed whether the significant probative value of the evidence was outweighed by the danger of unfair prejudice to the appellant, as s 101 requires.

The Crown argued alternatively that K's evidence was admissible as context evidence, a category recognised in some circumstances to explain the background to a complainant's account. The Court rejected this alternative basis, finding that the evidence did not satisfy the requirements for admission on that ground either.

The Court also declined to apply the proviso. The proviso allows a conviction to stand even where an error occurred at trial, if no substantial miscarriage of justice has actually taken place. Here, the Court was not satisfied that the jury's verdicts would inevitably have been the same without K's evidence. The subsequent admission of good character evidence by the defence was itself a consequence of K's evidence having been admitted, reinforcing the conclusion that the error was not harmless.

On the question of remedy, the Court acknowledged factors both for and against ordering a new trial, including the near-expiration of the appellant's sentences, the age of the alleged offences, and the stress a retrial would cause. However, the Court ultimately directed a new trial rather than acquittal, noting that admissible evidence capable of supporting conviction existed, and that a directed acquittal would tend to imply the appellant's innocence without the matter having been properly determined at a correctly conducted trial.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Convictions and sentences quashed
  • New trial directed

Key Takeaways

  • Under ss 97 and 101 of the Evidence Act 1995, tendency evidence involving uncharged acts requires careful judicial assessment of whether its significant probative value is outweighed by the danger of unfair prejudice; admission without that assessment constitutes error.
  • Evidence of uncharged acts against a third party will not automatically qualify as context evidence merely because it is similar in nature to the charged conduct; the requirements for that basis of admission must be independently satisfied.
  • Where improperly admitted evidence may have influenced the jury's verdicts and also prompted further defensive steps at trial, the proviso under the Criminal Appeal Act 1912 is unlikely to apply to preserve the convictions.
  • A directed verdict of acquittal is not the automatic consequence of a successful appeal; the Court of Criminal Appeal will weigh factors including the strength of the remaining admissible evidence, the administration of justice, and the personal circumstances of the appellant when choosing between acquittal and retrial.
  • Pending expiry of an appellant's sentence does not, by itself, preclude an order for a new trial, though it is a relevant consideration in the balancing exercise.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97, 101, 110
- Criminal Appeal Act 1912 (NSW), ss 6, 8
- Criminal Appeal Rules, r 4

Cases:
- HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
- Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
- Leonard v R [2006] NSWCCA 267; (2006) 67 NSWLR 545
- Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463
- DJV v R [2008] NSWCCA 272
- JDK v R [2009] NSWCCA 76; (2009) 194 A Crim R 333
- ST v R [2010] NSWCCA 5