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Court of Criminal Appeal 13 March 2013

Steadman v R (No 1)

[2013] NSWCCA 55

Sexual offences
EVIDENCE APPROPRIATE DIRECTIONS TO THE JURY

Citation: Steadman v R (No 1) [2013] NSWCCA 55
Court: Court of Criminal Appeal, New South Wales
Date: 13 March 2013
Judges: Macfarlan JA (principal judgment, [1]–[24]); Hall J ([25]); Campbell J ([26])

Background

The appellant was convicted in the District Court on three counts of indecent assault of a person under the age of 16, contrary to s 61E(1) and (1A) of the Crimes Act 1900. The complainant was his niece. The charged conduct spanned two incidents in 1983 and one in 1986, when the complainant was aged 12 and 15 respectively.

Before trial, the trial judge ruled that the Crown could lead "context evidence" from the complainant describing five separate incidents of sexual conduct by the appellant from 1978 and 1979. These earlier incidents included the appellant calling the complainant into bathrooms, wrestling her onto a bed, pulling her onto his lap in a spa, and entering a room where she was changing. The Crown's purpose in tendering this evidence was to contextualise the charged acts, not to prove propensity.

The appellant appealed his convictions on two grounds: first, that the context evidence was wrongly admitted; and second, that the trial judge's directions to the jury about that evidence were inadequate.

  • Whether prior uncharged sexual conduct could be admitted as "context evidence" to assist the jury in evaluating the complainant's account, where the Crown did not rely on it as propensity evidence
  • Whether the requirements of ss 97 and 100 of the Evidence Act 1995, or the Pfennig test for propensity evidence, were engaged
  • Whether the trial judge's jury directions sufficiently explained the permissible and impermissible uses of the context evidence
  • Whether the directions needed to include an express warning against using the evidence to infer a "sexual interest" or "guilty passion" on the part of the appellant

Decision

The Court held that the context evidence was properly admitted. Because the Crown tendered the evidence solely to contextualise the complainant's account and to explain her delay in complaining, the propensity evidence provisions in ss 97 and 100 of the Evidence Act 1995 were not engaged, nor was the Pfennig test. Macfarlan JA confirmed that evidence is admissible where it assists in the assessment of other evidence, consistent with the approach endorsed by the High Court in Roach v R and HML v R.

On the purpose of the evidence, Macfarlan JA drew a clear distinction between two permissible uses of context evidence (explaining why an apparently isolated act was not strange or inexplicable, and explaining delay in complaint) and one impermissible use (inferring that the accused was more likely to have committed the charged acts). The trial judge's directions addressed all three of these dimensions.

On the adequacy of directions, the Court found no error. The trial judge had explicitly told the jury it could not use the prior conduct as establishing tendency or propensity, and could not substitute those prior acts for the charged offences. Macfarlan JA distinguished the authority in Rodden v R, which had required an express direction against inferring "wrongful sexual feelings," on the basis that the evidence in Rodden consisted of telephone conversations rather than prior sexual acts, making explicit directions especially necessary in that case. Leave under r 4 of the Criminal Appeal Rules to raise the second ground of appeal was refused.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Context evidence of prior uncharged sexual conduct is admissible where tendered to explain a complainant's account or delay in complaining, and where the Crown does not rely on it to establish propensity; in those circumstances, ss 97 and 100 of the Evidence Act 1995 and the Pfennig test are not engaged.
  • A firm distinction exists between the permissible use of context evidence (explaining why charged acts do not appear inexplicable, or why a complainant delayed complaining) and the impermissible use of such evidence to reason that the accused was more likely to have committed the charged conduct.
  • The Court of Criminal Appeal confirmed that jury directions on context evidence do not invariably require an express warning against inferring "sexual interest" or "guilty passion"; the necessity for such a direction depends on the nature of the prior conduct and the risk of misuse in the particular case.
  • In dismissing the appeal, the Court distinguished Rodden v R by noting that the type of uncharged conduct at issue governs what explicit warnings the jury requires, with non-sexual prior conduct (such as phone calls) carrying a different risk of misuse than prior sexual acts.
  • No error was established in the trial judge's directions where the jury was clearly told it could not treat the uncharged acts as a substitute for proof of the charged offences, nor use them to infer a general tendency to commit such offences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61E(1) and (1A)
- Evidence Act 1995 (NSW), ss 97, 100
- Criminal Appeal Rules, r 4

Cases
- BBH v R [2012] HCA 9; 245 CLR 499
- DJV v R [2008] NSWCCA 272; 200 A Crim R 206
- ES v R (No 1) [2010] NSWCCA 197
- ES v R (No 2) [2010] NSWCCA 198
- HML v R [2008] HCA 16; 235 CLR 352
- KSC v R [2012] NSWCCA 179
- Pfennig v R [1995] HCA 7; 182 CLR 461
- Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463
- R v ATM [2000] NSWCCA 475
- Roach v R [2011] HCA 12; 242 CLR 610
- Rodden v R [2008] NSWCCA 53; 182 A Crim R 227