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Court of Criminal Appeal 6 September 2010

ES v R (No.2)

[2010] NSWCCA 198

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULT OF A CHILD ERRORS IN SUMMING UP CHARACTER EVIDENCE

Citation: ES v R (No.2) [2010] NSWCCA 198
Court: NSW Court of Criminal Appeal
Date: 6 September 2010
Judge(s): Hodgson JA; Whealy J; Buddin J

Background

The appellant was the step-grandfather-in-law of the complainant, a child born in 1988. He lived with the complainant's family at Wattle Grove and later Cowra between 1999 and 2002, during which time the alleged offending occurred. The complainant did not report the conduct until March 2007, when she disclosed it to her mother.

The appellant was tried in the District Court before Nield DCJ and a jury on four counts of indecent assault and one count of committing an act of indecency, all involving the complainant as a person under 16 years of age. The jury acquitted on two counts and returned guilty verdicts on three counts (counts 2, 3 and 4), involving touching and rubbing of the complainant's body in various locations. The trial judge imposed consecutive sentences of 18 months' imprisonment for each count, with non-parole periods of nine months each.

On appeal, the appellant challenged his convictions on counts 2, 3 and 4, raising grounds that had not been pursued at trial. The central question before the Court of Criminal Appeal was whether leave should be granted under Rule 4 of the Criminal Appeal Rules to rely on those fresh points.

  • Whether evidence of uncharged acts of sexual misconduct was properly admitted at trial, given that the requirements for tendency evidence under ss 97, 100 and 101 of the Evidence Act 1995 had not been satisfied
  • Whether errors in the trial judge's summing-up, particularly the failure to give adequate directions about the use of uncharged acts evidence, justified appellate intervention
  • Whether leave should be granted under Rule 4 of the Criminal Appeal Rules to raise grounds not taken at trial, including the absence of objection to the evidence and the absence of any request for further directions
  • Whether the appellant's evidence of good character (specifically, that he had no conviction for sexual assault) rendered the uncharged acts evidence admissible in rebuttal under s 110 of the Evidence Act, subject to leave to cross-examine under s 112

Decision

The Court accepted that there were real problems with the way the uncharged acts evidence was received at trial. The evidence had been admitted without objection and without the Crown satisfying the statutory requirements for tendency evidence under ss 97, 100 and 101 of the Evidence Act 1995. The summing-up also contained errors in how the jury was directed about that evidence, and no complaint was made about those directions at trial, nor was any further direction sought.

Hodgson JA applied the well-established principle that an appellate court will be very reluctant to grant leave to raise grounds not taken at trial, particularly where competent defence counsel was present and made no objection or request for redirection. The Court found no sufficient reason to depart from that principle on the facts of this case. The absence of a timely objection or complaint deprived the trial judge of the opportunity to correct any error, and the Court concluded that leave under Rule 4 should be refused.

On the character evidence issue, Hodgson JA expressed tentative views, noting that the appellant had led evidence of good character (specifically, no prior conviction for sexual assault), and that this may have opened the door to rebuttal evidence under s 110, provided the Crown first obtained leave to cross-examine under s 112. His Honour was also inclined to the view, consistent with R v OGD (No 2) and R v El-Kheir, that any such evidence admitted under s 110 could only be used to rebut the good character claim and not as affirmative evidence of guilt. However, because this point did not affect the leave question, his Honour declined to decide it definitively. Whealy and Buddin JJ agreed with the orders but expressly declined to express any opinion on the character evidence analysis.

Orders Made

  • Leave to appeal against conviction granted, to the extent necessary
  • Leave to rely on points not taken below refused
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that leave to raise new grounds on appeal will ordinarily be refused where experienced defence counsel raised no objection at trial and made no request for corrective directions, even where evidentiary errors appear to have occurred.
  • A failure to object to the admission of uncharged acts evidence, and a failure to request jury directions about its permissible use, are significant factors weighing against the grant of leave under Rule 4 of the Criminal Appeal Rules.
  • Under the Evidence Act 1995, evidence of uncharged acts led as tendency evidence must satisfy the requirements of ss 97, 100 and 101; admission without compliance with those provisions is an error, but that error may not ground an appeal if no objection was taken below.
  • Where an accused leads evidence of good character in the form of a clean record for sexual offending, that may open the door to rebuttal under s 110 of the Evidence Act 1995, but only with leave to cross-examine obtained under s 112, and Hodgson JA (tentatively) confirmed the existing position that such evidence can only be used to rebut the good character claim, not as substantive proof of guilt.
  • Whealy and Buddin JJ declined to endorse the character evidence analysis, leaving that aspect of the law unsettled at the appellate level on the facts of this case.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 100, 101, 102, 110, 112, 135, 137, 192
- Criminal Appeal Rules, Rule 4

Cases
- R v ATM [2000] NSWCCA 475
- Browne v Dunn (1893) 6 R 67
- BRS v R [1997] HCA 47; (1997) 191 CLR 275
- Eastman v R (1997) 76 FCR 9
- R v El-Kheir [2004] NSWCCA 461
- ES v R (No 1) [2010] NSWCCA 197
- HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
- MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
- R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433
- R v PKS (NSWCCA, 1 October 1998)
- Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463
- R v Stalder (1981) 3 A Crim R 87
- Toalepai v R [2009] NSWCCA 270
- R v Zurita [2002] NSWCCA 22