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Court of Criminal Appeal 8 September 2010

DJS v R

[2010] NSWCCA 200

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULTS TENDENCY EVIDENCE WHETHER A MISCARRIAGE OF JUSTICE

Citation: DJS v R [2010] NSWCCA 200
Court: NSW Court of Criminal Appeal
Date: 8 September 2010
Judge(s): Hodgson JA; Kirby J; Whealy J

Background

The appellant was the stepfather of the complainant, who was born in September 1991. The family lived together in the Albury district for several years, and the complainant made allegations of sexual offending against the appellant in May 2007, first to a friend and then to her school principal.

The appellant was tried before Blackmore DCJ in the District Court on seven counts, including sexual intercourse without consent, sexual intercourse with a child, and indecent assault. The jury returned verdicts of guilty on four counts. He was sentenced to a total term of ten years imprisonment, with an effective non-parole period of six years and six months.

On appeal, the appellant challenged his conviction on the basis that the trial judge had failed to direct the jury that certain uncharged incidents, admitted as tendency evidence, had to be proved beyond reasonable doubt before the jury could rely on them.

  • Whether the trial judge erred by failing to direct the jury that uncharged incidents used as tendency evidence must be established beyond reasonable doubt before being relied upon.
  • Whether that failure constituted a miscarriage of justice.
  • Whether the proviso in section 6 of the Criminal Appeal Act 1912 applied, such that no substantial miscarriage of justice actually occurred despite any error.

Decision

The Court accepted that the trial judge had erred in failing to direct the jury that uncharged incidents adduced as tendency evidence needed to be proved beyond reasonable doubt. This much was not in dispute on the appeal. The central question was whether that error led to a miscarriage of justice warranting the quashing of the conviction.

Hodgson JA examined each piece of uncharged incident evidence individually. Most of the uncharged conduct, including various incidents suggesting an unusual interest in the complainant, was found to be of minimal significance or highly equivocal. The Court concluded there was no real possibility that the jury had given weight to those incidents in a manner that fell short of satisfaction beyond reasonable doubt yet still contributed to their guilty verdicts.

The one piece of evidence requiring more careful consideration was a witness's account of an incident involving the appellant and a pair of boxer shorts belonging to the complainant's boyfriend. Hodgson JA acknowledged a remote possibility that the jury may not have been satisfied of this incident beyond reasonable doubt yet still accorded it some weight. However, the Court found that possibility too remote to support a conclusion that the misdirection had any real significance in producing the verdicts.

Applying the proviso under section 6 of the Criminal Appeal Act 1912, the Court independently assessed the evidence and concluded that the appellant was proved beyond reasonable doubt to be guilty of the offences on which the jury returned its verdicts. The misdirection was not so fundamental as to deprive the appellant of a trial according to law, and no substantial miscarriage of justice had actually occurred.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A trial judge's failure to direct the jury that uncharged incidents admitted as tendency evidence must be proved beyond reasonable doubt is an error, but it does not automatically result in a successful appeal.
  • The Court of Criminal Appeal confirmed that the proviso in section 6 of the Criminal Appeal Act 1912 may be applied where the appellate court is satisfied, after independently assessing the evidence, that no substantial miscarriage of justice actually occurred.
  • In assessing whether a misdirection on tendency evidence caused a miscarriage of justice, the court examines each piece of uncharged conduct individually to determine whether the jury could realistically have given it weight falling short of the beyond reasonable doubt standard in a way that infected the verdict.
  • Where uncharged incident evidence is highly equivocal or of minimal probative significance, the risk that an undirected jury improperly relied on it is unlikely to be sufficient to overturn a conviction.
  • A misdirection will only deprive an accused of a trial according to law where it is sufficiently fundamental; a remote possibility that the jury misused particular evidence does not, of itself, satisfy that threshold.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW) s 6
- Criminal Procedure Act 1986 (NSW) s 294B
- Evidence Act 1995 (NSW) s 97

Cases
- R v ATM [2000] NSWCCA 475
- DJV v R [2008] NSWCCA 272
- Gipp v The Queen [1998] HCA 21; 194 CLR 106
- R v Haggerty [2004] NSWCCA 89; (2004) 145 A Crim R 138
- HML v The Queen [2008] HCA 16; 235 CLR 334
- JDK v R [2009] NSWCCA 76; (2009) 194 A Crim R 333
- Rees v R [2010] NSWCCA 66
- RWB v R [2010] NSWCCA 147
- R v TAB [2002] NSWCCA 274
- R v Toki (No 3) [2000] NSWSC 999; (2000) 116 A Crim R 536
- Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300