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Court of Criminal Appeal 14 December 2012

JD v R

[2012] NSWCCA 274

Sexual offences
CRIMINAL LAW APPEAL CONVICTION ADMISSION OF EVIDENCE FRESH EVIDENCE NEW EVIDENCE

Citation: JD v R [2012] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 14 December 2012
Judge(s): McClellan CJ at CL (leading judgment), Rothman J, Bellew J

Background

The applicant was convicted after a jury trial of three counts of aggravated indecent assault and one count of aggravated sexual intercourse, all alleged to have been committed against his daughter between 2002 and 2006 when she was aged between 5 and 10 years. No complaint was made until September 2010, by which time the applicant and the complainant's mother were engaged in divorce proceedings.

The Crown case depended on the jury accepting the complainant as truthful and reliable. Defence counsel cross-examined the complainant to suggest the events did not happen, and highlighted the timing of the complaint relative to the marriage breakdown, but notably did not put to the jury that the complainant had fabricated her evidence.

At trial, the applicant sought to tender a document (MFI 12), which comprised notes he had prepared at his solicitor's request for Family Court proceedings recording events during contact visits with his daughters. The trial judge refused to admit the document in full, offering instead to admit a redacted version with prejudicial passages removed. Defence counsel declined that course, and the tender was rejected.

  • Whether the trial judge erred in refusing to admit MFI 12 in its entirety under s 108(3) of the Evidence Act 1995 (admission to rebut suggestions of recent invention or to restore credibility)
  • Whether MFI 12 was alternatively admissible under s 66A of the Evidence Act 1995 as a contemporaneous representation of the applicant's knowledge or state of mind
  • Whether a second document (undated instructions from the applicant to his solicitor) constituted fresh or new evidence that should be admitted on appeal
  • Whether the overall conduct of the trial resulted in a miscarriage of justice

Decision

On the admissibility of MFI 12 under s 108(3), the Court found that the preconditions for admission were not made out at trial. The Crown had not suggested in cross-examination that the document was fabricated or recently invented. The cross-examination of the applicant about MFI 12 was limited to the suggestion that the notes had been prepared for Family Court purposes and therefore contained nothing discreditable to him. Without a suggestion of recent invention or fabrication, there was no proper basis for the s 108(3) application.

The Court also noted that the s 66A argument had never been raised at trial and was not advanced on appeal. Even if it had been, the Court found that it would not have altered the outcome, because the document, even taken in its best light, could not have materially assisted the applicant given the way the trial had been conducted.

Regarding the second document (Annexure B to the affidavit filed on appeal), the Court found it was not truly fresh evidence. It had been referred to in both written and oral submissions at trial, and no adequate explanation was offered for why it had not been tendered then. No injustice arose from trial counsel's decision not to use it.

The Court rejected the broader submission that a miscarriage of justice had occurred. Citing TKWJ v The Queen, McClellan CJ at CL emphasised that an appellate court is not entitled to find unfairness simply because a rational tactical decision by trial counsel may have worked to the accused's disadvantage. The submission was characterised, in substance, as a request for a second trial conducted on a different tactical basis, which the Court declined to grant.

Orders Made

  • Leave to appeal granted (to the extent required)
  • Appeal dismissed

Key Takeaways

  • A document cannot be admitted under s 108(3) of the Evidence Act 1995 to rebut a suggestion of recent invention unless such a suggestion has actually been made in the proceedings; a general attack on the reliability or self-serving nature of a document does not meet that threshold.

  • Where a ground of admissibility (here, s 66A) is not raised at trial, an appellate court will be slow to entertain it on appeal, particularly where its availability would not have changed the outcome.

  • Evidence is not "fresh" for the purposes of a conviction appeal where it was referred to in submissions at trial; the inability to explain why it was not tendered at first instance will be fatal to its admission on appeal.

  • In dismissing the appeal, the Court confirmed the principle from TKWJ v The Queen that the adversarial system does not guarantee a fair trial simply because tactical decisions by defence counsel might, with hindsight, be viewed as having disadvantaged the accused.

  • An appeal that is, in substance, an attempt to re-run a trial on a different tactical footing will not succeed as a vehicle for establishing a miscarriage of justice.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2)
- Evidence Act 1995 (NSW), ss 66A, 108(3)

Cases
- TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- Wood v R [2012] NSWCCA 21