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Court of Criminal Appeal 9 August 2012

SSN v R

[2012] NSWCCA 163

Sexual offences
CRIMINAL LAW APPEAL CONVICTION TENDENCY EVIDENCE CONTEXT EVIDENCE

Citation: SSN v R [2012] NSWCCA 163
Court: Court of Criminal Appeal, New South Wales
Date: 9 August 2012
Judge(s): McClellan CJ at CL (with Hidden J and Hislop J agreeing)

Background

The applicant was convicted on three counts of sexual offences against a child complainant, alleged to have occurred at a house on an Aboriginal mission over two periods: when the complainant was approximately five years old and when he was approximately eight years old. The offences included acts of indecency and sexual intercourse with a child under ten, contrary to the Crimes Act 1900 (NSW).

The prosecution case rested primarily on the complainant's account, which described repeated incidents occurring under a house, where the applicant allegedly lured him using promises of sweets. Corroborating evidence included accounts from relatives to whom the complainant had disclosed the conduct, and witness observations placing both the complainant and the applicant at the relevant premises.

Two other witnesses provided evidence that the applicant had exposed himself to them and, in one instance, touched one of them inappropriately. This evidence was admitted as tendency evidence. Those same witnesses also gave evidence of conversations in which the complainant had described the alleged offending conduct.

  • Whether the probative value of the tendency evidence substantially outweighed its prejudicial effect, and whether the trial judge gave proper consideration to the application to admit it
  • Whether the trial judge's directions to the jury regarding context evidence were correct in law
  • Whether the verdicts were unreasonable or unsupported by the evidence

Decision

Tendency evidence: McClellan CJ at CL found that the trial judge had not given proper consideration to whether the probative value of the tendency evidence substantially outweighed its prejudicial effect, as required under the Evidence Act 1995 (NSW). The tendency evidence (conduct involving flashing and inappropriate touching of the two witnesses) was admitted to establish that the applicant had a tendency to act in a sexually inappropriate manner toward young people. The court found that the trial judge's reasoning on this point was inadequate, creating appellable error.

Context evidence directions: The court also identified error in the trial judge's directions regarding context evidence. The applicable principles governing how the jury should treat evidence admitted as "context" for the charged offences were not correctly explained, and this misdirection was capable of causing a miscarriage of justice.

Unreasonable verdict: Despite identifying the above errors, the court addressed the unreasonable verdict ground. McClellan CJ at CL reviewed the whole of the evidence, including the complainant's account, the supporting witnesses, and the applicant's denial. He noted that the jury was entitled to reject the applicant's evidence and that of witnesses supporting his position, given the substantial body of contrary evidence. On this ground alone, the court would not have allowed the appeal, acknowledging the jury's advantage of having observed the witnesses give evidence.

Outcome: The combination of errors in the admission and use of the tendency evidence, and the inadequate jury directions on context evidence, led the court to allow the appeal, quash the convictions, and order a new trial. All three judges were in agreement.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Verdicts of conviction quashed
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge must give genuine and adequate consideration to whether the probative value of tendency evidence substantially outweighs its prejudicial effect before admitting it; a formulaic or insufficiently reasoned ruling will constitute appellable error.
  • Where tendency evidence is admitted to demonstrate a sexual propensity, the nexus between the tendency conduct and the charged conduct must be carefully examined, and the strength of that connection is central to the probative value assessment.
  • Incorrect jury directions on the use of context evidence, like errors in admitting tendency evidence, can constitute a miscarriage of justice sufficient to warrant a new trial even where the evidence against an accused is substantial.
  • An appellate finding that a verdict was not unreasonable does not insulate a conviction from being quashed where other independently established errors (such as evidentiary and directions errors) have caused a miscarriage of justice.
  • The court's review of the "unreasonable verdict" ground under the Criminal Appeal Act 1912 (NSW) reaffirmed that an appellate court must give weight to the jury's advantage of observing witnesses, and that any residual doubt at the appellate level does not automatically displace that advantage.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61N(1), 66A
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- BBH v The Queen [2012] HCA 9; (2012) 86 ALJR 357
- BP v R [2010] NSWCCA 303
- Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233
- HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
- JDK v R [2009] NSWCCA 76; (2009) 194 A Crim R 33
- O'Keefe v R [2009] NSWCCA 121
- R v Baldwin [2004] NSWCCA 21
- R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126
- R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308
- R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451
- R v Lockyer (1996) 89 A Crim R 457
- R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400