Citation: Rees v R [2010] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 15 April 2010
Judge(s): Handley AJA; Grove J; Hislop J
Background
The appellant stood trial in the District Court on two counts: an indecent assault alleged to have occurred in November 2001, and sexual intercourse without consent alleged to have occurred on 30 September 2006. The complainant was over 16 at all relevant times. The appellant was the father of her partner, and the parties had an ongoing family connection over the period in question.
The appellant was acquitted of the first count but convicted of the second. He was sentenced to seven years' imprisonment with a four-year non-parole period. He appealed the conviction on two grounds relating to jury directions, and also challenged the sentence.
At trial, the Crown led what is called "relationship evidence" (sometimes called context evidence): the complainant's account of repeated sexual advances and inappropriate physical contact by the appellant over the years between the two alleged offences. This evidence was admitted not to prove a general tendency to offend, but to provide context for the charged conduct.
Legal Issues
- Whether the trial judge misdirected the jury on the permitted use of relationship evidence, specifically whether the directions allowed the jury to reason impermissibly about the appellant's propensity to commit sexual offences
- Whether the trial judge's redirection on the complainant's possible motives for lying was adequate
- Whether the proviso under section 6 of the Criminal Appeal Act applied, such that despite any misdirection, no substantial miscarriage of justice had occurred and the appeal should be dismissed
Decision
Ground 1: Misdirection on relationship evidence
The trial judge's written and oral directions told the jury that the relationship evidence could help them understand "the true relationship" between the parties, which "on the Crown case was a sexual one from an early time," and could assist in determining whether the Crown had proved the charges. The Court of Criminal Appeal applied its earlier decision in JDK v The Queen [2009] NSWCCA 76, where virtually identical directions by the same judge were found to be erroneous. The problem in both cases was that the directions failed to identify the specific issue the relationship evidence was admitted to address, and instead invited the jury to use it to reason toward guilt, which constitutes impermissible propensity reasoning.
Although defence counsel at trial had seen a draft of the written directions and raised no objection, the Court granted leave to raise the ground despite the operation of rule 4 of the Court of Criminal Appeal Rules (which ordinarily bars grounds not raised at trial). The error was regarded as too fundamental to be excluded by that procedural rule.
The proviso argument
The Crown submitted that the appeal should nonetheless be dismissed because no substantial miscarriage of justice had occurred, pointing to the jury's apparent acceptance of the complainant's evidence. The Court rejected this submission. The case was essentially one of oath against oath: the appellant flatly denied both the charged offence and the relationship evidence, and the complainant's account of the second offence was uncorroborated in any independent sense. Although prompt complaints were made, all of the subsequent conduct ultimately traced back to the complainant herself. The Court noted it was unaware of any case in which the proviso had been applied where there was a serious misdirection and the evidence came down to oath against oath. Given the highly prejudicial nature of the relationship evidence and the real difficulty any jury faces in applying a limited-use direction to such material, the Court could not be judicially satisfied that a properly directed jury would inevitably have convicted.
Ground 2: Redirection on motives for lying
The Court declined to grant leave on this ground. Defence counsel at trial had in fact requested and received a redirection, drafting the terms themselves with no objection from the Crown. Appellant's new counsel sought to complain about the adequacy of that very redirection. The Court held that the circumstances fell squarely within rule 4, and leave was refused.
Orders Made
- Appeal allowed
- Conviction quashed
- New trial ordered
Key Takeaways
- Relationship evidence (context evidence) in sexual assault trials is admissible only for a limited, identified purpose; directions that invite a jury to reason from such evidence toward guilt without specifying that purpose constitute impermissible propensity reasoning.
- The Court of Criminal Appeal applied and reinforced its earlier ruling in JDK v The Queen [2009] NSWCCA 76, confirming that the same judge's standard directions on relationship evidence were erroneous.
- Even where no objection to jury directions was raised at trial, the Court retains a discretion to grant leave under rule 4 of the Court of Criminal Appeal Rules where the error is sufficiently fundamental.
- The proviso under section 6 of the Criminal Appeal Act will not readily be applied to cure a serious misdirection in a case that reduces to oath against oath, with no independent corroboration of the complainant's account of the charged offence.
- Prompt complaint evidence, while consistent with the complainant's account, does not constitute independent corroboration where all subsequent conduct originates from the complainant's own assertions.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated