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Court of Criminal Appeal 22 August 2013

Colquhoun v R (No 2)

[2013] NSWCCA 191

Sexual offences
CRIMINAL LAW CONVICTIONS QUASHED

Citation: Colquhoun v R (No 2) [2013] NSWCCA 191
Court: NSW Court of Criminal Appeal
Date: 22 August 2013
Judge(s): Macfarlan JA (principal judgment); Fullerton J and Adamson J (agreeing)

Background

The appellant was tried in the District Court in May 2009 on five charges of aggravated indecent assault under s 61M(1) of the Crimes Act 1900, the aggravating circumstance being that the complainant was under 16 years of age (he was 13 at the time of the alleged offences in 2007). The appellant was 43 years old. The alleged offences occurred on a boat and at a public swimming facility, where the appellant had befriended the complainant over a period of weeks, giving him food, fishing with him, and allowing him and his friends to use the boat.

The jury convicted the appellant on three counts (Counts 1, 4 and 5), acquitted him on one count (Count 2), and could not reach a verdict on a fifth count (Count 3). The appellant appealed against his convictions but not his sentence.

The appeal centred on the Crown's use of photographs and video footage found in the appellant's possession, evidence from other child witnesses about the appellant's associations with children, and the trial judge's directions to the jury about how that evidence could properly be used.

  • Whether evidence of the appellant's photographs of children and his associations with other children was admissible and, if so, whether it was used for an impermissible tendency reasoning purpose.
  • Whether the trial judge's directions adequately restricted the jury to using that evidence only for permissible purposes (such as context, relationship, or establishing sexual desire toward the complainant specifically).
  • Whether the Crown Prosecutor's closing address invited the jury to reason impermissibly from that evidence.
  • Whether the other grounds of appeal (including witness examination applications and additional self-represented grounds) raised arguable issues.

Decision

The Court upheld Appeal Grounds 1 and 2, finding that the admission and use of the tendency-style evidence resulted in a miscarriage of justice. The Crown tendered a large number of photographs and video footage of children found in the appellant's possession, and cross-examined the appellant extensively about them, emphasising that the subjects were children rather than adults and were partially clothed. The Crown Prosecutor's closing address invited the jury to infer an "unusual interest" in boys from this material, going beyond any permissible use of the evidence.

The trial judge's summing-up compounded the problem. While the judge gave the jury some limiting directions, the overall direction permitted the jury to treat the photographs and the evidence of the appellant's associations with children as material from which it could draw inferences about his general sexual attitude toward young people. That reasoning was impermissible tendency reasoning: the requirements for using evidence in that way under the Evidence Act 1995 had not been satisfied, and the jury had effectively been invited to reason from the appellant's character or disposition to guilt on the specific charges.

The Court rejected the remaining self-represented grounds as raising no arguable issues. The appellant's contention that the summing-up "mocked and downplayed" his case was specifically found to be without foundation. The applications to have 13 named witnesses examined were also dismissed, as the appellant had not established that any of the proposed witnesses could give evidence he would be entitled to lead for the first time on appeal.

Because the proviso to s 6(1) of the Criminal Appeal Act 1912 did not apply (meaning the Court could not be satisfied the jury would inevitably have convicted even without the error), the convictions were quashed and a new trial directed. The Court noted that the decision whether to actually proceed with a retrial rested with the Director of Public Prosecutions, and flagged as a relevant consideration that the appellant had by then served the bulk of his non-parole period.

Orders Made

  • Leave granted under r 4 of the Criminal Appeal Rules to rely on Appeal Grounds 1 and 2.
  • Appeal allowed.
  • Convictions on the three counts on which guilty verdicts were returned (Counts 1, 4 and 5) quashed.
  • New trial directed on those charges.
  • Applications for examination of witnesses filed 18 January 2013 dismissed insofar as they related to these proceedings.

Key Takeaways

  • The Court of Criminal Appeal confirmed that photographs and other material suggesting a general interest in children cannot be used as tendency evidence unless the formal requirements under the Evidence Act 1995 for tendency evidence are satisfied; without that foundation, inviting a jury to draw inferences of sexual disposition from such material is impermissible.
  • A trial judge's limiting direction does not cure the error if the overall direction still permits the jury to use the evidence for an impermissible tendency purpose; the adequacy of a direction must be assessed in the context of the summing-up as a whole and alongside the Crown's closing address.
  • Where the Crown's closing address frames evidence as demonstrating an accused's "unusual interest" in children generally, rather than confining it to the permissible uses of context, relationship, or specific desire toward the complainant, that framing may constitute an invitation to impermissible reasoning even if the evidence was arguably admissible for another purpose.
  • The proviso to s 6(1) of the Criminal Appeal Act 1912 will not save convictions where the court cannot be satisfied that the jury, properly directed, would inevitably have convicted.
  • In directing a new trial, the Court noted it remains for the Director of Public Prosecutions to assess whether a retrial is appropriate, with the amount of sentence already served being a relevant practical consideration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(1)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW)

Cases
- Colquhoun v R (No 1) [2013] NSWCCA 190
- DJV v R [2008] NSWCCA 272; 200 A Crim R 206
- Gonzales v The Queen [2007] NSWCCA 321; 178 A Crim R 232
- Libke v R [2007] HCA 30; 230 CLR 559
- Norman v R [2012] NSWCCA 230
- R v Wilson [2005] NSWCCA 20; 62 NSWLR 346
- Steadman v R (No 1) [2013] NSWCCA 55