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Court of Criminal Appeal 3 December 2010

KTR v R

[2010] NSWCCA 271

Sexual offencesDomestic & family violence
CRIMINAL LAW APPLICATION OF RULE 4

Citation: KTR v R [2010] NSWCCA 271
Court: New South Wales Court of Criminal Appeal
Date: 3 December 2010
Judge(s): McClellan CJ at CL; Simpson J; Fullerton J

Background

The appellant was convicted by jury on 15 counts of sexual offences committed against his two stepdaughters between 1979 and 1982, when the complainants were aged between 10 and 14 years. The offences involved a course of escalating sexual conduct over several years. The jury returned majority verdicts of 11 to 1 on all counts, and the appellant was sentenced to a total term of 11 years and 6 months imprisonment, with an effective non-parole period of 7 years.

At trial, the Crown led evidence not only of uncharged sexual acts as relationship evidence and tendency and coincidence evidence, but also of the appellant's violent behaviour toward the complainants, other family members, and their mother. The appellant did not challenge the admission of the uncharged sexual conduct evidence on appeal, but argued that the violence evidence was wrongly admitted and that the trial judge gave inadequate jury directions concerning it.

The appellant also argued that a miscarriage of justice arose from the Crown Prosecutor's address to the jury. The Court of Criminal Appeal dismissed the appeal in its entirety.

  • Whether the trial judge erred in admitting evidence of the appellant's violent behaviour toward the complainants, other family members, and their mother over a period of time
  • Whether the trial judge gave the jury adequate directions about the proper use of that violence evidence
  • Whether a miscarriage of justice occurred as a result of the Crown Prosecutor's address to the jury

Decision

The court held that the evidence of the appellant's violence was properly admitted. Its relevance lay in explaining why the complainants acquiesced in repeated sexual abuse and did not complain to their mother or anyone else. Without this contextual evidence, the jury might otherwise have found it difficult to understand, based on ordinary life experience, how two young sisters could have continued to comply with their stepfather's conduct without disclosure. The violence evidence provided an explanation grounded in the complainants' stated fear of the appellant.

Simpson J agreed that the violence evidence was admissible, and went further on one contested point. Her Honour rejected the proposition that violence directed at the mother or another child in the household was only admissible where the complainants were specifically aware of those individual instances. The relevant question was whether the appellant's general disposition to violence, evidenced across the household, supported the complainants' account that their acquiescence and silence stemmed from fear. Even if some particular incidents were unknown to the complainants, those incidents remained a relevant strand of the Crown's case.

On the jury directions ground, the court found no error warranting intervention. Similarly, the complaint about the Crown Prosecutor's address did not establish a miscarriage of justice. All three judges agreed the appeal should be dismissed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Evidence of an offender's general violent behaviour within a household is admissible in a sexual assault trial where it explains a complainant's acquiescence and failure to complain, even where specific instances of violence were not directly witnessed by the complainant.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that jurors cannot be assumed to draw on life experience to understand why child victims of repeated sexual abuse may remain silent; evidence that contextualises that silence serves a legitimate probative purpose.
  • The court drew on the High Court's reasoning in HML v R (2008) 235 CLR 334, applying the principle that evidence of an offender's behaviour, including violence, can be admitted to explain what might otherwise appear implausible to a jury.
  • No error was established in the trial judge's directions to the jury regarding the violence evidence, nor was any miscarriage of justice made out in connection with the Crown Prosecutor's closing address.
  • Admissibility of violence evidence directed at third parties was not confined to incidents the complainants personally witnessed; the broader pattern of conduct across the household remained relevant to the fear the complainants described.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)

Cases:
- HML v R (2008) 235 CLR 334; [2008] HCA 16
- Hoch v The Queen [1988] HCA 50; 165 CLR 292
- House v The King (1936) 55 CLR 499
- Leonard v R (2006) 164 A Crim R 374
- R v DDR [1998] 3 VR 380; (1997) 99 A Crim R 327
- R v GAE (2000) 1 VR 198
- R v JDK [2009] NSWCCA 76
- R v Livermore (2006) 67 NSWLR 569
- Smale v R (2007) NSWCCA 328
- Tully v R (2006) 230 CLR 234
- Wilson v The Queen (1970) 123 CLR 334