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Court of Criminal Appeal 15 April 2010

REES v R

[2010] NSWCCA 66

Sexual offences
CRIMINAL LAW SEXUAL OFFENCE RELATIONSHIP EVIDENCE PROPER USE OF DIRECTIONS TO JURY. CRIMINAL APPEAL SEXUAL OFFENCE

Citation: REES v R [2010] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 15 April 2010
Judges: Handley AJA, Grove J, Hislop J

Background

The appellant was tried in the District Court before Judge Finnane SC on two counts of sexual offences against the same complainant. The complainant was over 16 at all relevant times and was the partner of the appellant's son. The appellant was acquitted of the first count (indecent assault in November 2001) but convicted of the second count (sexual intercourse without consent on 30 September 2006), and sentenced to seven years imprisonment with a four-year non-parole period.

At trial, the Crown led "relationship evidence": the complainant's account of the appellant's repeated sexual advances and inappropriate physical contact during the period between the two alleged offences. This evidence was admitted to provide context for the charged conduct. The appellant denied both the offence and the relationship conduct entirely.

The central problem on appeal was that the trial judge's written and oral directions to the jury on the permissible use of that relationship evidence were later held, in a separate decision (JDK v The Queen [2009] NSWCCA 76), to be erroneous.

  • Whether the trial judge misdirected the jury on the proper use of relationship (context) evidence
  • Whether the trial judge's redirection on the complainant's possible motives for lying was adequate
  • Whether the proviso under s 6 of the Criminal Appeal Act could be applied to dismiss the appeal despite the misdirection, on the basis that no substantial miscarriage of justice had occurred

Decision

On the second ground, the Court declined to grant leave to argue the adequacy of the redirection on motive to lie. The redirection had been given in the exact terms proposed by defence counsel, who had no objection at the time. Rule 4 of the Court of Criminal Appeal Rules bars a party from raising a direction as a ground of appeal without leave where no objection was taken at trial. The Court applied that rule and refused leave.

On the first ground, the Court found the jury directions on relationship evidence were erroneous, consistent with the earlier ruling in JDK v The Queen. The directions failed to clearly instruct the jury that they could not use the relationship evidence to reason that the appellant had a propensity to commit sexual offences. This distinction is critical: relationship evidence is admissible to contextualise the alleged offending, but not to invite the inference that the accused is the type of person likely to offend.

The Court then turned to whether the proviso applied. The Crown argued the jury must have accepted the complainant's evidence and that no substantial miscarriage of justice had resulted. The Court rejected that argument. The case was essentially oath against oath: the complainant's evidence about the offence itself was uncorroborated, and while there was evidence of prompt complaint consistent with her account, all of that evidence ultimately traced back to the complainant herself. No independent corroboration of her primary evidence existed.

Handley AJA noted the Court was unaware of any case in which the proviso had been applied following a serious misdirection in an essentially oath-against-oath trial. Given the highly prejudicial nature of relationship evidence and the difficulty any jury faces in confining its use to permissible purposes, the Court could not be judicially satisfied that a properly directed jury would inevitably have convicted the appellant.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • A misdirection on the permissible use of relationship evidence will not automatically be cured by the proviso, particularly where the case turns on the complainant's uncorroborated word against that of the accused.
  • The Court of Criminal Appeal confirmed that juries must be clearly directed that relationship evidence cannot be used to establish propensity to offend, and that directions failing to achieve this are erroneous.
  • Where a conviction rests on an oath-against-oath contest and there is no independent corroboration of the complainant's account, the court's ability to apply the proviso is significantly constrained.
  • Rule 4 of the Court of Criminal Appeal Rules operates to prevent a ground of appeal based on an allegedly inadequate direction where defence counsel drafted and agreed to the direction at trial without objection.
  • Prompt complaint evidence, while consistent with the complainant's account, does not amount to independent corroboration of the primary allegation where all conduct post-offence traces back to the complainant herself.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Criminal Appeal Act 1912 (NSW), s 6 (the proviso)
- Court of Criminal Appeal Rules, Rule 4

Cases:
- JDK v The Queen [2009] NSWCCA 76