Citation: Sokolowskyj v Regina [2014] NSWCCA 55
Court: NSW Court of Criminal Appeal
Date: 15 April 2014
Judges: Hoeben CJ at CL, Adams J, Hall J
Background
The appellant was tried in the Gosford District Court on one count of assault with an act of indecency upon a person under the age of 10, contrary to s 61M(2) of the Crimes Act 1900. The Crown alleged that the appellant had taken the complainant, then aged eight, into a parents' room at a shopping centre and touched her vagina while his girlfriend used a nearby toilet.
The sole issue at trial was whether the offence occurred at all. The appellant denied the conduct, challenged the reliability of the complainant's account, and did not give evidence.
Before trial, the Crown sought to rely on tendency evidence in the form of agreed facts documenting the appellant's three prior convictions, from 2000, 2001, and 2003, for public indecent exposure and masturbation. The trial judge admitted this evidence. The jury convicted the appellant, and he was sentenced to two years and six months' imprisonment with a non-parole period of fifteen months. The appeal was against conviction only.
Legal Issues
- Whether the trial judge erred in admitting the tendency evidence under s 97(1)(b) and s 101(2) of the Evidence Act 1995, which require that tendency evidence have "significant probative value" and that its probative value substantially outweigh its prejudicial effect
- Whether the tendency, as formulated by the Crown, was expressed at too high a level of generality to satisfy those statutory requirements
- Whether the admission of the tendency evidence, if wrongly admitted, resulted in a miscarriage of justice warranting the conviction being quashed
Decision
The Court found that the tendency identified by the Crown, namely that the appellant had a tendency "to have sexual urges and to act on them in public in circumstances where there was a reasonable likelihood of detection," was framed at an unacceptably high level of generality. The prior convictions involved public indecent exposure and masturbation by an adult in the presence of adult women. The charged conduct, by contrast, involved the digital touching of a child inside a semi-private room. The Court held that the tendency, as stated, did not meaningfully connect the prior conduct to the specific circumstances of the alleged offence.
The Court also found that the tendency evidence lacked "significant probative value" as required by s 97(1)(b). The prior incidents were not sufficiently similar to the charged conduct to render the tendency genuinely probative of whether the appellant committed the particular act alleged. The Crown had framed the tendency at a level of generality that risked sweeping in almost any prior sexual offending.
On the s 101(2) balancing exercise, the trial judge had failed to weigh the probative value of the evidence against its prejudicial effect in any meaningful way. The trial judge appeared to assume, without analysis, that a jury direction would be sufficient to manage the risk of unfair prejudice. The Court held this constituted a House v The King error, enabling the appellate court to re-exercise the discretion. On re-exercise, the Court concluded that the probative value of the tendency evidence did not substantially outweigh its prejudicial effect, and it should have been rejected under s 101(2) and, alternatively, s 137.
The error in admitting the tendency evidence was found to have resulted in injustice, warranting the quashing of the conviction.
Orders Made
- The appeal is allowed.
- The appellant's conviction dated 3 August 2012 is quashed.
- A new trial is ordered.
- The Court noted that, as the appellant had already served the non-parole portion of his sentence, it was a matter for the prosecuting authority whether to proceed with a new trial.
Key Takeaways
- Under s 97(1)(b) and s 101(2) of the Evidence Act 1995, tendency evidence must have "significant probative value" and that probative value must substantially outweigh the risk of unfair prejudice; satisfaction of the relevance threshold in s 55 is not sufficient.
- A tendency expressed at a high level of generality, such as a general propensity to act on sexual urges in public, may not carry sufficient probative value to clear the s 97 threshold, particularly where the prior conduct and the charged conduct differ meaningfully in nature and circumstances.
- The Court of Criminal Appeal confirmed that where a trial judge fails to conduct the balancing exercise required by ss 97 and 101, or assumes without analysis that jury directions will neutralise prejudice, that failure constitutes an error of the type identified in House v The King, enabling the appellate court to re-exercise the discretion.
- Appellate intervention in tendency evidence rulings requires either a House v The King error or an error assessed by the Warren v Coombs standard; the Court left open the broader question of which standard governs such appeals generally, as the facts here satisfied the higher House v The King test in any event.
- An erroneous admission of tendency evidence in a case where the sole issue is whether the offence occurred at all is capable of producing a miscarriage of justice sufficient to quash a conviction.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61M(2)
- Evidence Act 1995 (NSW), ss 55, 97(1)(b), 101(2), 137, 191
Cases:
- House v The King [1936] HCA 40; 55 CLR 499
- Warren v Coombs [1979] HCA 9; 142 CLR 531
- Patel v The Queen [2012] HCA 29; 247 CLR 531
- Pfennig v R [1995] HCA 7; 182 CLR 461
- DAO v R [2011] NSWCCA 63
- DJV v R [2008] NSWCCA 272; 200 A Crim R 206
- FB v Regina; Regina v FB [2011] NSWCCA 217
- Qualtieri v The Queen [2006] NSWCCA 95; 171 A Crim R 463
- R v Fletcher [2005] NSWCCA 338
- R v Ford [2009] NSWCCA 306
- R v GAC [2007] NSWCCA 315; 178 A Crim R 408
- R v Watkins [2005] NSWCCA 164; 153 A Crim R 434
- Regina v Linard Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- Townsend v Townsend [2001] NSWCA 136