Citation: Steadman v R (No 2) [2013] NSWCCA 56
Court: Court of Criminal Appeal, NSW
Date: 13 March 2013
Judge(s): Macfarlan JA at [1]; Hall J at [35]; Campbell J at [37]
Background
The appellant was convicted in the District Court of indecently assaulting his daughter in July 1974, when she was 13 years old. The alleged offence occurred during an overnight stay in Sydney for a family funeral, where the family slept in sleeping bags in a single room. The complainant gave evidence that she woke to find her father's hand inside her unbuttoned pyjama top, resting on her breast.
The complainant also gave evidence of a broader pattern of sexually inappropriate conduct by the appellant both before and after the alleged offence, including incidents in the family home in the Australian Capital Territory. This background evidence was admitted as "context evidence" by the trial judge, and its admissibility formed a central ground of appeal.
The appellant denied that the family had stayed overnight in Sydney at all, and denied any inappropriate behaviour. The trial came down to the word of the complainant against the word of the appellant, with no other material witnesses.
Legal Issues
- Whether the complainant's evidence of prior and subsequent sexually inappropriate conduct by the appellant was properly admitted as context evidence under the Evidence Act 1995, and whether it satisfied the requirements for propensity evidence.
- Whether the trial judge gave adequate and appropriate directions to the jury about how to use the context evidence.
- Whether the trial judge erred in excluding, under s 135 of the Evidence Act 1995, a prior statement made by the complainant to a third party (Mrs Kleijn) that the defence sought to tender as a prior inconsistent statement.
- Whether any errors identified resulted in a substantial miscarriage of justice, such that the Court should decline to apply the proviso under s 6(1) of the Criminal Appeal Act 1912.
Decision
Context evidence and jury directions: The Court addressed whether the background evidence of prior sexual misconduct was admissible as context evidence, and whether the jury was properly directed on its use. The evidence was tendered not simply to prove a propensity to offend, but to assist the jury in evaluating the complainant's account, including why she attempted to avoid sleeping near her father. The Court examined whether the requirements for propensity evidence were satisfied and considered whether the directions given to the jury adequately distinguished the permissible uses of the evidence from impermissible reasoning.
Exclusion of the prior statement: The trial judge had excluded, under s 135 of the Evidence Act 1995, part of a statement made by the complainant to Mrs Kleijn, which the defence sought to use as a prior inconsistent statement to challenge the complainant's credit. The Court of Criminal Appeal found that this exclusion was erroneous: s 135 permits exclusion of evidence whose probative value is substantially outweighed by the danger of unfair prejudice, but the concept of "unfair prejudice" in that section does not extend to prejudice to the Crown case simply because the evidence might assist the defence.
Application of the proviso: Despite finding error in the exclusion of the prior statement, the Court applied the proviso under s 6(1) of the Criminal Appeal Act 1912 and declined to allow the appeal on that ground. Crucially, the Court found that the excluded material, upon examination, actually bolstered rather than undermined the complainant's credibility. The complaint to Mrs Kleijn was consistent with, and supportive of, the complainant's account at trial rather than contradicting it. All three judges independently reviewed the evidence and concluded that no substantial miscarriage of justice had actually occurred.
Overall result: The appeal was dismissed. The Court was satisfied that, having regard to the full body of evidence and the jury's evident acceptance of the complainant's account, the identified errors did not produce a substantial miscarriage of justice.
Orders Made
• The appeal should be dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that "unfair prejudice" in s 135 of the Evidence Act 1995 does not encompass prejudice to the Crown merely because tendered evidence favours the accused; erroneously applying s 135 to exclude defence evidence on that basis constitutes legal error.
- Context evidence of prior sexual conduct in historical assault cases may be admissible to assist the jury in evaluating a complainant's evidence and behaviour, but its admission and the directions given to the jury must be carefully calibrated to avoid the evidence functioning as bare propensity reasoning.
- In applying the proviso under s 6(1) of the Criminal Appeal Act 1912, the Court conducts its own independent assessment of whether a substantial miscarriage of justice has actually occurred, not merely whether an error was made at trial.
- Where an erroneously excluded prior statement would, on its face, have strengthened rather than weakened the complainant's credit, no substantial miscarriage of justice arises from its exclusion, even in a case turning entirely on the relative credibility of the complainant and the accused.
- Sufficient evidence existed in the jury's verdict, and in the overall quality of the complainant's evidence, to support the conviction, notwithstanding the identified trial error.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 76
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), s 135
Cases cited:
- Baini v R [2012] HCA 59; 87 ALJR 180
- Cooper v R [2012] HCA 50; 87 ALJR 32
- DJV v R [2008] NSWCCA 272
- ES v R (No 1) [2010] NSWCCA 197
- ES v R (No 2) [2010] NSWCCA 198
- KSC v R [2012] NSWCCA 179
- 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
- SKA v R [2011] HCA 13; 243 CLR 400
- Steadman v R (No 1) [2013] NSWCCA 55
- Weiss v R [2005] HCA 81; 224 CLR 300