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11
Court of Criminal Appeal 25 July 2014

Saoud v R

[2014] NSWCCA 136

Also reported as (2014) 87 NSWLR 481
Sexual offences
APPEAL AND NEW TRIAL APPEAL GENERAL PRINCIPLES INTERMEDIATE APPELLATE COURTS INTERPRETATION OF UNIFORM LEGISLATION WHETHER DIFFERENCE EXISTS

Citation: Saoud v R [2014] NSWCCA 136
Court: NSW Court of Criminal Appeal
Date: 25 July 2014
Judge(s): Basten JA; Fullerton J; R A Hulme J

Background

The applicant operated an automotive repair business and was charged with seven counts of indecent assault and sexual assault arising from two separate complaints. The first complainant alleged that the applicant lured her to his business premises after hours under a pretence and then sexually assaulted her in August 2009. The second complainant, a former employee, made a similar allegation relating to an incident in May 2011.

The circumstances described by each complainant were materially alike: both were former employees invited to the premises after hours, and both described the applicant persisting in sexual conduct despite their resistance. The applicant denied the first complainant's allegations entirely. As to the second complainant, he conceded that the underlying physical conduct had occurred but maintained it was consensual.

At trial, the judge admitted the evidence of each complainant as tendency and coincidence evidence relevant to the charges concerning the other. The applicant sought leave to appeal against conviction, arguing the evidence should not have been admitted.

  • Whether the evidence of each complainant had "significant probative value" with respect to the charges concerning the other, as required by ss 97 and 98 of the Evidence Act 1995 (NSW)
  • Whether the probative value of that evidence substantially outweighed any prejudicial effect on the applicant, as required by s 101(2) of the Evidence Act 1995 (NSW)
  • Whether the standard of appellate review applicable was the more deferential House v The King standard for discretionary decisions, or a less restrictive "was the decision simply wrong" standard
  • Whether the Victorian Court of Appeal's approach to tendency evidence in Velkoski v The Queen [2014] VSCA 121 was inconsistent with the approach taken by the NSW Court of Criminal Appeal

Decision

Standard of review. The Court confirmed that the trial judge's admissibility ruling involved an evaluative judgment, and therefore bore the characteristics of a discretionary exercise of power. Accordingly, the applicable standard of review was that set out in House v The King (1936) 55 CLR 499: the applicant needed to demonstrate either a specific legal error or a result so unreasonable that error could be inferred even if not precisely identified. Counsel for the applicant conceded this point.

Significant probative value. The Court held that the evidence of each complainant did have significant probative value with respect to the charges concerning the other. The critical issue at trial was not merely whether the sexual conduct had occurred, but whether the applicant had persisted despite the absence of consent. The similarities between the two accounts, including the workplace setting, the after-hours invitation, and the persistence in the face of resistance, bore directly on that contested issue. This remained so even though the applicant conceded certain physical conduct in the second complaint.

Probative value substantially outweighing prejudice. The Court was satisfied that the probative value of the evidence substantially outweighed any prejudicial effect. The evidence was confined to the charges themselves, did not involve deviant or inflammatory conduct, and there was no suggestion of collaboration or contamination between the complainants. Any residual prejudice could be adequately addressed by appropriate jury directions.

The Victorian Court of Appeal decision in Velkoski. The Court considered whether Velkoski represented a different interpretation of "significant probative value" under the uniform evidence legislation. Basten JA examined the NSW authorities and concluded that, properly understood, there was no material inconsistency between the two jurisdictions on the relevant principles. It was therefore unnecessary to resolve any conflict.

Orders Made

• The appeal should be dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an admissibility ruling on tendency and coincidence evidence under ss 97, 98 and 101 of the Evidence Act 1995 (NSW) involves an evaluative judgment attracting the deferential House v The King standard of appellate review.
  • The "significant probative value" test requires the court to identify the actual issues in dispute at trial before assessing whether similar-fact evidence advances the prosecution case. Evidence going to whether conduct was consensual can have significant probative value even where some underlying physical conduct is admitted.
  • Similarities between independent complaints are capable of satisfying the significant probative value threshold where those similarities bear directly on a live and contested issue, such as persistence in the face of non-consent.
  • Under s 101(2), the absence of collaboration or contamination between complainants, the non-deviant nature of the conduct alleged, and the availability of jury directions are all relevant considerations when weighing probative value against prejudicial effect.
  • The Court found no material inconsistency between its own prior decisions on tendency evidence and the Victorian Court of Appeal's reasoning in Velkoski v The Queen [2014] VSCA 121 regarding the degree of similarity required for the significant probative value threshold to be met.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 98, 101
- Evidence Act 2008 (Vic), ss 97, 98
- Criminal Appeal Act 1912 (NSW), ss 5, 5F

Cases
- House v The King [1936] HCA 40; 55 CLR 499
- Stubley v State of Western Australia [2011] HCA 7; 242 CLR 374
- Velkoski v The Queen [2014] VSCA 121
- DAO v The Queen [2011] NSWCCA 63; 81 NSWLR 568
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- R v Ford [2009] NSWCCA 306; 201 A Crim R 451
- R v PWD [2010] NSWCCA 209; 205 A Crim R 75
- BP v R [2010] NSWCCA 303
- Sokolowskyj v R [2014] NSWCCA 55
- Hoch v The Queen [1988] HCA 50; 165 CLR 292
- R v Zhang [2005] NSWCCA 437
- O'Keefe v The Queen [2009] NSWCCA 121
- KRI v The Queen [2011] VSCA 127; 207 A Crim R 552