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Court of Criminal Appeal 30 July 2014

R v MM

[2014] NSWCCA 144

Sexual offences
CRIMINAL LAW EVIDENCE TENDENCY EVIDENCE ADMISSIBILITY EVIDENCE CONTEXT EVIDENCE

Citation: R v MM [2014] NSWCCA 144
Court: NSW Court of Criminal Appeal
Date: 30 July 2014
Judge(s): Emmett JA; Price J; Fullerton J

Background

The respondent faced trial in the District Court on one count of sexual intercourse without consent and an alternative count of incest, both alleged to have occurred between September and December 1981. The complainant was his sister, who was aged 18 or 19 at the time of those alleged offences. The respondent had separately pleaded guilty in the Local Court to a charge of carnal knowledge of the same complainant, committed in 1973 or 1974 when she was aged 10 or 11.

The Crown sought to adduce a substantial body of evidence at trial, including the complainant's statements describing a pattern of sexual abuse spanning from approximately 1973 to 1976, a recorded telephone conversation in which the respondent made admissions, a statement from his former partner, and transcripts of a police interview in which he acknowledged sexual contact with the complainant. The Crown sought to rely on this material as tendency evidence, context evidence, and as general admissions.

The trial judge, Neilson DCJ, rejected the entire body of evidence before the jury was empanelled. The Crown appealed under s 5F(3A) of the Criminal Appeal Act 1912 (NSW), which permits the Director of Public Prosecutions to appeal a ruling on admissibility where it eliminates or substantially weakens the prosecution case. It was common ground that rejection of the evidence substantially weakened the prosecution.

  • Whether the evidence of the respondent's earlier sexual conduct toward the complainant was admissible as tendency evidence under ss 97 and 101 of the Evidence Act 1995 (NSW), specifically whether its probative value substantially outweighed any prejudicial effect pursuant to s 101(2)
  • Whether the same evidence was admissible as context evidence under s 137 of the Evidence Act, meaning evidence that provided relevant background to the charged offences, and whether any danger of unfair prejudice outweighed its probative value
  • Whether the primary judge's discretionary rulings on both grounds were attended by appealable error of the kind identified in House v R (1936) 55 CLR 499

Decision

The Court of Criminal Appeal found that the primary judge erred on both grounds of admissibility. On tendency evidence, the Court held that the earlier conduct demonstrated a tendency to have a sexual interest in the complainant and to act on that interest. The probative value of the evidence was found to substantially outweigh any prejudicial effect, satisfying the elevated threshold in s 101(2). The Court identified two specific errors: the primary judge failed to consider the ameliorating effect of judicial directions to the jury, and failed to properly account for the reasons behind the apparent gap in offending between 1975/1976 and 1981. No reasoned analysis had been applied to other factors that would have attenuated the significance of any prejudice.

On context evidence, the Court held that the evidence of the respondent's earlier sexual mistreatment of the complainant did make a relevant contribution to the context of the charged events. The earlier conduct was directly relevant to understanding the nature and circumstances of the 1981 allegations, and the danger of unfair prejudice did not outweigh the evidence's probative value under s 137.

The Court also confirmed that the respondent's guilty plea to the s 71 offence was admissible as an admission of penile-vaginal intercourse with the complainant when she was aged approximately 10. The general admissions made in the recorded telephone conversation and the police interview were likewise held to be admissible.

The Court noted that the primary judge had made additional remarks during oral argument and in his judgment that had since become the subject of a complaint to the Judicial Commission by the Attorney-General. In those circumstances, the Court ordered that a different judge preside at the retrial.

Orders Made

  • The appeal be allowed.
  • The decision of Neilson DCJ of 8 April 2014 rejecting the evidence be set aside.
  • The matter of admissibility of evidence be remitted to the District Court for determination in accordance with the Court of Criminal Appeal's reasons.
  • A different judge to preside at trial (directed, not formally ordered).

Key Takeaways

  • A tendency evidence ruling under s 101(2) of the Evidence Act is susceptible to appellate review where a primary judge fails to consider relevant factors, including the availability of curative jury directions and contextual reasons for a gap in a pattern of alleged conduct.
  • Under s 101(2), the probative value of tendency evidence must substantially outweigh any prejudicial effect. This is a higher threshold than the general discretion in s 137, where exclusion is required only where probative value is outweighed by the danger of unfair prejudice.
  • Context evidence does not need to form part of a charged count to be admissible: evidence of uncharged sexual conduct may be admitted where it makes a relevant contribution to understanding the circumstances of the events that are charged.
  • The Court of Criminal Appeal confirmed that the standard of review for discretionary admissibility rulings remains that in House v R, requiring identification of specific error rather than simply a different view of the balance.
  • Where a primary judge makes remarks during proceedings that become the subject of a complaint to the Judicial Commission, the Court of Criminal Appeal may direct that a different judge preside at the retrial, even without a formal order to that effect.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D, 71, 78A
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Evidence Act 1995 (NSW), ss 97, 101, 137

Cases:
- House v R [1936] HCA 40; 55 CLR 499
- HML v R [2008] HCA 16; 235 CLR 334
- Gilbert v R [2000] HCA 15; 201 CLR 414
- DAO v R [2011] NSWCCA 63; 81 NSWLR 568
- DJV v R [2008] NSWCCA 272; 200 A Crim R 106
- R v Ford [2009] NSWCCA 306; 201 A Crim R 451
- R v Suteski [2002] NSWCCA 509; 56 NSWLR 182
- KJS v R [2014] NSWCCA 27
- Sokolowskyj v R [2014] NSWCCA 55