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Court of Criminal Appeal 22 May 2013

R v XY

[2013] NSWCCA 121

Also reported as (2013) 84 NSWLR 363
Sexual offences
APPEAL CRIMINAL CRIMINAL APPEAL ACT 1912 (NSW) EVIDENCE S 137 EVIDENCE ACT 1995 (NSW) S 137 EVIDENCE ACT 1995 (NSW) CRIMINAL PROCEEDINGS

Citation: R v XY [2013] NSWCCA 121
Court: NSW Court of Criminal Appeal
Date: 22 May 2013
Judges: Basten JA; Hoeben CJ at CL; Simpson J; Blanch J; Price J

Background

The respondent faced trial in the District Court on an indictment alleging five counts of indecent assault of a child under 10 years of age and one count of aggravated sexual assault. The alleged offences occurred in 2002, when the complainant was eight years old. The respondent had been a close friend of the complainant's mother's de facto partner and spent considerable time at the family home during that period.

Approximately nine years after the alleged incidents, police facilitated and recorded two telephone conversations between the complainant and the respondent. Those conversations included exchanges in which the respondent appeared, at least in part, to acknowledge knowledge of the complainant and to respond to her allegations, before later denying any memory of the relevant events. The transcript of those conversations formed one of four main planks of the prosecution case.

At a voir dire held before trial, the trial judge (Quirk DCJ) excluded the telephone conversation evidence under both s 90 and s 137 of the Evidence Act 1995 (NSW). The Director of Public Prosecutions appealed against those rulings under s 5F(3A) of the Criminal Appeal Act 1912 (NSW), which permits a Director's appeal against an evidentiary ruling only where it eliminates or substantially weakens the prosecution case.

  • Whether the Court had jurisdiction under s 5F(3A) of the Criminal Appeal Act 1912 (NSW), specifically whether the exclusion of the telephone conversations substantially weakened the prosecution case.
  • Whether the trial judge erred in excluding the evidence under s 137 of the Evidence Act 1995 (NSW), which requires exclusion where the danger of unfair prejudice to the defendant outweighs probative value.
  • Whether, in applying s 137, a court may take into account the credibility and reliability of evidence when assessing probative value, or whether it is limited to assessing the capacity of the evidence to prove a fact (the approach established in R v Shamouil [2006] NSWCCA 112).
  • Whether the trial judge erred in excluding the evidence under s 90 of the Evidence Act 1995 (NSW), which confers a discretion to exclude admissions where it would be unfair to the defendant to use them.
  • Whether the approach to s 137 adopted in Shamouil remained binding on the Court, given the Victorian Court of Appeal's refusal to follow it in Dupas v The Queen [2012] VSCA 328.

Decision

The appeal produced a divided court, and no single set of reasons commanded majority support on all issues. The majority allowed the appeal.

On the central question of s 137, the majority found that the trial judge had erred. Basten JA (with whom Simpson J substantially agreed on this point) held that the potential for prejudice from the telephone evidence could be adequately addressed by appropriate jury directions, and that the probative value of the evidence, if the jury drew the available inference of acknowledgment, was significant. The risk of unfair prejudice therefore did not outweigh probative value, and the mandatory exclusionary power in s 137 was not engaged.

On the Shamouil question, the court was divided. Basten JA and Simpson J expressed reservations about the restrictive approach in Shamouil, which confines the s 137 probative value assessment to the capacity of evidence to support a finding, excluding consideration of credibility and reliability. Both acknowledged the force of the Victorian Court of Appeal's criticism in Dupas. However, the majority did not find it necessary to overrule Shamouil to dispose of the appeal. Blanch J and Price J, in dissent, would have dismissed the appeal; Price J expressed the view that the approach in Dupas was preferable and that credibility and reliability considerations should be available to a court assessing probative value under s 137.

On s 90, the majority held that the trial judge's exercise of the discretion to exclude was not warranted. The pressure on the respondent to give evidence arose principally from the need to contradict the complainant's testimony, not from any need to explain his responses in the phone calls. That pressure did not make it unfair to admit the evidence, and any infringement of the right to silence was not sufficiently established to engage the discretion.

On jurisdiction under s 5F(3A), the majority held that, because the telephone evidence had the capacity to substantially strengthen the prosecution case if admitted, its exclusion substantially weakened that case. The jurisdictional threshold was therefore met.

Orders Made

• Dismiss the appeal

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Director of Public Prosecutions' right of appeal under s 5F(3A) of the Criminal Appeal Act 1912 (NSW) is enlivened where excluded evidence had the capacity to substantially strengthen the prosecution case, not merely where the prosecution case is otherwise weak.
  • Under s 137 of the Evidence Act 1995 (NSW), a risk of unfair prejudice that can be adequately addressed by jury directions will generally not outweigh the probative value of otherwise significant evidence, and the mandatory exclusionary power will not be engaged.
  • The restrictive Shamouil principle, that probative value for s 137 purposes is assessed by reference to the capacity of evidence to support a finding rather than its credibility or reliability, was not overruled by the majority, though several judges expressed doubt about its correctness in light of Dupas v The Queen [2012] VSCA 328.
  • Where intermediate appellate courts in different Australian jurisdictions interpret uniform legislation differently, a court is not automatically required to treat the later conflicting decision as plainly wrong before declining to follow it; the desirability of consistency in uniform legislation must be weighed against orderly administration of justice within each jurisdiction.
  • Admission of a recorded conversation in which an accused responded to allegations does not, without more, infringe the right to silence so as to engage the s 90 discretion, particularly where any practical pressure to give evidence derives mainly from the complainant's own testimony.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 85, 90, 97, 98, 101, 103, 135, 137, 138
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Criminal Procedure Act 1986 (NSW), s 294AA
- Crimes Act 1900 (NSW), ss 61J, 61L
- Surveillance Devices Act 2007 (NSW)

Cases
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- Dupas v The Queen [2012] VSCA 328
- MA v The Queen [2013] VSCA 20
- DAO v R [2011] NSWCCA 63; 81 NSWLR 568
- DSJ v R; NS v R [2012] NSWCCA 9; 259 FLR 262
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
- Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
- EM v The Queen [2007] HCA 46; 232 CLR 67
- Festa v The Queen [2001] HCA 72; 208 CLR 593
- House v The King [1936] HCA 40; 55 CLR 499
- Condon v Pompano Pty Ltd [2013] HCA 7