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Court of Criminal Appeal 22 August 2013

Colquhoun v R (No 1)

[2013] NSWCCA 190

Sexual offences
CRIMINAL LAW CONVICTIONS QUASHED CRIMINAL LAW

Citation: Colquhoun v R (No 1) [2013] NSWCCA 190
Court: NSW Court of Criminal Appeal
Date: 22 August 2013
Judge(s): Macfarlan JA (with Fullerton J and Adamson J agreeing)

Background

The appellant was convicted in the District Court in February 2009 on three counts involving indecent acts with a child complainant aged 11, contrary to the Crimes Act 1900. The complainant and the appellant had met at a Sydney swimming spot in late 2006 and the appellant, then aged 42, cultivated a friendship with the boy by providing gifts and taking him on recreational outings. The complainant's mother was aware of and permitted the friendship.

The charged conduct arose from two separate incidents. The first occurred at the appellant's home in March 2007, when the complainant alleged the appellant masturbated in his presence and grabbed and touched his genitals. The second occurred later that month, when the appellant gave the complainant a back massage at the complainant's home, which the complainant alleged extended to his buttocks.

The appellant was convicted on all three counts and sentenced to a total term of imprisonment of 6 years and 4 months, with a non-parole period of 5 years. He appealed his convictions on eight grounds.

  • Whether a miscarriage of justice occurred because photographs and video footage showing the appellant's apparent sexual interest in the complainant were admitted and used at trial without the requirements for tendency evidence under ss 97 and 101 of the Evidence Act 1995 being satisfied, and without a jury direction prohibiting tendency reasoning.
  • Whether the trial judge's directions to the jury adequately addressed an alleged motive to lie on the part of the complainant and his mother.
  • Whether leave should be granted under r 4 of the Criminal Appeal Rules to permit the appellant to rely on Ground 1, given that no objection had been raised at trial.
  • Whether the verdicts should be quashed and verdicts of acquittal entered, or whether a new trial should be ordered.
  • Whether the applications to have 13 named witnesses examined on appeal should be granted.

Decision

The Court found that Ground 1, concerning the photographs and video footage, was the determinative issue and justified quashing the convictions. The Crown tendered two compact discs, provided by the appellant to the complainant's mother, which contained a large number of photographs and video footage of the complainant. Many depicted the boy in only swimwear or shorts, with focus on his body rather than his face. The Crown Prosecutor relied on this material in closing address to invite the jury to question the nature of the relationship, and the trial judge's summing-up referenced those submissions without any direction to restrict the use the jury could make of the material.

The Court held that this evidence, if relevant at all, was relevant only to show the appellant's sexual interest in the complainant. Evidence of that kind amounts to tendency evidence and its use is governed by the strict requirements of ss 97 and 101 of the Evidence Act 1995. Those requirements were not satisfied at trial. Absent compliance with those provisions, the jury was required to be directed not to use the material to reason that the appellant's apparent interest in the child made it more likely he had committed the charged offences. No such direction was given, and the jury was effectively invited to engage in precisely that reasoning.

The Court accepted the Crown's concession that, if the material was capable of suggesting sexual interest, a direction was required. The failure to give one constituted a significant misdirection. Leave was granted under r 4 of the Criminal Appeal Rules because the error was sufficiently serious to warrant it, notwithstanding the absence of an objection at trial.

On the question of remedy, the Court declined to enter verdicts of acquittal. There was evidence upon which a properly instructed jury could have convicted the appellant, but the Court could not itself assess witness credibility, including that of the complainant. That assessment was a function for the jury. Accordingly, a new trial was ordered, with the Court noting that the Director of Public Prosecutions retains a discretion as to whether to proceed, and that the impending expiry of the imprisonment term in November 2013 would be a relevant consideration.

Orders Made

  • Leave granted under r 4 of the Criminal Appeal Rules to rely on Appeal Ground 1.
  • Appeal allowed.
  • Convictions entered following the verdicts of guilty at the February 2009 trial quashed.
  • New trial of the charges directed.
  • Applications for examination of witnesses filed on 18 January 2013 (insofar as they related to these proceedings) dismissed.

Key Takeaways

  • Where evidence is capable of demonstrating a sexual interest of an accused in a child complainant, it constitutes tendency evidence and may only be used as such if the requirements of ss 97 and 101 of the Evidence Act 1995 are satisfied.
  • Where such evidence is admitted on another basis (for example, as context), the trial judge must direct the jury not to use it for tendency reasoning; the absence of that direction in this case was held to constitute a miscarriage of justice.
  • A conviction will not stand where the jury has been invited, through the Crown's closing address and the trial judge's summing-up, to engage in impermissible tendency reasoning with no corrective instruction.
  • Quashing convictions does not automatically result in acquittals; where there was evidence on which a properly directed jury could have convicted, the appropriate remedy is a new trial, preserving the jury's role as the assessor of witness credibility.
  • The Court of Criminal Appeal confirmed that leave under r 4 of the Criminal Appeal Rules may be granted to raise a ground not objected to at trial where the error is serious enough to justify it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 61O
- Evidence Act 1995 (NSW), ss 97, 101
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), r 4

Cases
- BBH v R [2012] HCA 9; 245 CLR 499
- Colquhoun v R (No 2) [2013] NSWCCA 191
- Doe v R [2008] NSWCCA 203
- ES v R (No 1) [2010] NSWCCA 197
- ES v R (No 2) [2010] NSWCCA 198
- DJV v R [2008] NSWCCA 272; 200 A Crim R 206
- Gonzales v The Queen [2007] NSWCCA 321; 178 A Crim R 232
- House v The King [1936] HCA 4; 55 CLR 499
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 462
- R v AH (1999) 42 NSWLR 702
- R v Wilson [2005] NSWCCA 20; 62 NSWLR 346
- RWC v R [2010] NSWCCA 332
- Steadman v R (No 1) [2013] NSWCCA 55
- Toalepai v R [2009] NSWCCA 270
- TWL v R [2012] NSWCCA 57
- TWL v R (No 2) [2012] NSWCCA 93