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Court of Criminal Appeal 20 September 2012

SKA v Regina

[2012] NSWCCA 205

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION CHALLENGE TO JURY VERDICTS APPEAL AGAINST CONVICTION CONTEXT EVIDENCE CORRECTNESS OF DIRECTIONS

Citation: SKA v Regina [2012] NSWCCA 205
Court: Court of Criminal Appeal, New South Wales
Date: 20 September 2012
Judges: Beazley JA; Adams J; Hislop J

Background

The appellant was convicted by jury in October 2008 of five counts of sexual assault, aggravated sexual assault, and aggravated indecent assault against his niece by marriage. The offences were alleged to have occurred in 2004 and 2006, when the complainant was under 10 and 10 years of age respectively. The appellant received a total effective sentence of imprisonment with a non-parole period of approximately four years and nine months.

The appellant initially appealed unsuccessfully to the Court of Criminal Appeal. He was then granted special leave by the High Court on limited grounds. The High Court allowed the appeal, set aside the earlier dismissal, and remitted the matter to the Court of Criminal Appeal for re-determination.

On remittal, the appellant filed an amended notice of appeal raising five grounds, including the reasonableness of the verdicts, directions on propensity reasoning and separate consideration of counts, the adequacy of a particular warning about identification evidence given by reference to a delay in complaint, and an application to adduce new evidence.

  • Whether the jury's verdicts were unreasonable and could not be supported by the evidence
  • Whether the trial judge erred by failing to adequately direct the jury against using context evidence as propensity or tendency evidence
  • Whether the trial judge erred by failing to direct the jury to consider each count separately
  • Whether the trial judge erred by failing to adequately warn the jury in accordance with the principles in R v Murray (1987) 11 NSWLR 12 (a direction addressing the risks arising from a complainant's inability to specify precise dates)
  • Whether leave should be granted to adduce new evidence

Decision

New evidence application: All three judges agreed the application to adduce new evidence should be dismissed. The new evidence did not satisfy the requirement of sufficient cogency to cause the Court to entertain a reasonable doubt as to the appellant's guilt.

Unreasonable verdict ground (Ground 1): The court divided on this ground. Beazley JA, conducting an independent assessment of the whole of the evidence as required by M v The Queen (1994) 181 CLR 487, concluded the verdicts on all five counts were open to the jury. Adams J (with Hislop J agreeing) reached a different conclusion on counts 4 and 5, finding that alibi evidence related to the 2006 offences, combined with other troubling features of the complainant's evidence on those counts, left him with a reasonable doubt. Adams J did not consider the evidence on counts 1, 2, and 3 unsafe enough to warrant acquittal outright, but held a retrial was appropriate given the misdirections discussed below.

Directions on context evidence and propensity reasoning: Adams J (Hislop J agreeing) found that the trial judge's direction on context evidence was erroneous. Context evidence in sexual assault trials is admissible to assist the complainant in giving a coherent account and to avoid apparent credibility deficits from a partial narrative. However, the trial judge's direction invited the jury to use that evidence as proof of the offences charged, rather than merely to understand the complainant's account. Despite a nominal qualification, the direction effectively also invited propensity reasoning, which is an impermissible use of such evidence. Beazley JA dissented, concluding that the written directions, read as a whole, adequately guarded against propensity reasoning, particularly given that experienced counsel had raised no objection at trial.

Separate consideration of counts: Adams J (Hislop J agreeing) also found error in the trial judge's direction on the separate consideration of counts. The direction told the jury, in substance, that finding the complainant credible on one count meant there would need to be something specific to doubt her on the remaining counts. This inverted the correct approach: while a finding that the complainant was disbelieved on one count might properly inform caution about the others, each count must be evaluated separately and a finding of credibility on one count cannot effectively transfer the burden of disbelief to the remaining counts.

Orders Made

  • Appeal allowed
  • Convictions on all five counts quashed
  • Appellant acquitted on counts 4 and 5
  • Matter remitted for retrial on counts 1, 2, and 3

Key Takeaways

  • Context evidence in sexual assault trials is admissible only to assist the jury in understanding a complainant's account of charged conduct, not as substantive proof of the offences and not as a basis for propensity or tendency reasoning. A direction that conflates these purposes is an error of law.
  • Where multiple counts arise from the same complainant, a trial judge must direct the jury to consider each count separately, identifying the relevant evidence for each. A credibility finding favourable to the complainant on one count may be borne in mind, but cannot operate as a presumption of reliability across the remaining counts.
  • The Court of Criminal Appeal confirmed that it is required to undertake an independent assessment of the evidence when determining whether a verdict is unreasonable under s 6(1) of the Criminal Appeal Act 1912, following the approach established in M v The Queen (1994) 181 CLR 487.
  • New evidence on appeal must satisfy a cogency threshold: it must be of sufficient weight to cause the court to entertain a reasonable doubt as to guilt. Evidence that falls short of that standard will not be admitted.
  • A direction in accordance with R v Murray (1987) 11 NSWLR 12 (addressing risks arising from imprecision in dates) is a matter for the trial judge's discretion, with no fixed verbal formula required.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules (NSW)

Cases
- M v The Queen [1994] HCA 63; 181 CLR 487
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- R v Murray (1987) 11 NSWLR 12
- R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- JDK v R; R v JDK [2009] NSWCCA 76; 194 A Crim R 333
- DJV v R [2008] NSWCCA 272; 200 A Crim R 206
- DTS v R [2008] NSWCCA 329; 192 A Crim R 204
- Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463
- MFA v R [2002] HCA 53; 213 CLR 606
- Murray v The Queen [2002] HCA 26; 211 CLR 193
- Longman v The Queen [1989] HCA 60; 168 CLR 79
- Jones v R [1997] HCA 56; 191 CLR 439
- Pahuja v R (1987) 49 SASR 191; 30 A Crim R 118
- Kaifoto aka Teaupa v R [2006] NSWCCA 186
- Douglass v The Queen [2012] HCA 34
- Aouad and El-Zeyat v R [2011] NSWCCA 61; 207 A Crim R 411