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9
Court of Criminal Appeal 9 May 2014

RH v R

[2014] NSWCCA 71

Also reported as (2014) 241 A Crim R 1
Sexual offences
CRIMINAL LAW EVIDENCE PROPENSITY, TENDENCY AND CO INCIDENCE ADMISSIBILITY AND RELEVANCE TENDENCY AND CO

Citation: RH v R [2014] NSWCCA 71
Court: Court of Criminal Appeal, New South Wales
Date: 9 May 2014
Judge(s): Ward JA (leading judgment); Harrison J and RA Hulme J (agreeing)

Background

The appellant was convicted by a jury in the District Court on five counts relating to sexual offences against a foster daughter, Jane, committed between 1989 and 1993 when she was aged 9 to 12, and one count of aggravated indecent assault against another foster daughter, Kay, in 2003 when she was 12 to 13 years old. The offences largely occurred in the children's bedrooms at night. The appellant and his wife had fostered and later adopted both complainants, as well as numerous other children over many years.

Central to the trial was the appellant's prior guilty plea in 2010 to five counts of aggravated indecent assault against a third foster daughter, Lisa, committed between 2005 and 2006 when Lisa was 11 years old. An agreed statement of facts concerning those offences was placed before the jury, and several witnesses gave evidence about the circumstances surrounding Lisa's disclosure of the abuse.

The appellant challenged his convictions on multiple grounds, contending that tendency evidence derived from the Lisa offences was wrongly admitted, that there was a risk of concoction or contamination between the complainants' accounts, and that the jury's verdicts were unreasonable or not supported by the evidence.

  • Whether evidence of the appellant's prior guilty plea and admitted conduct involving Lisa was properly admitted as tendency evidence under the Evidence Act 1995 (NSW)
  • Whether the possibility of concoction or contamination between the accounts of Jane, Kay, and Lisa undermined the admissibility or weight of the tendency evidence
  • Whether the verdicts returned by the jury on counts 1 to 5 (relating to Jane) and count 7 (relating to Kay) were unreasonable or insupportable having regard to the evidence as a whole

Decision

Tendency evidence. The Court of Criminal Appeal upheld the trial judge's decision to admit evidence of the appellant's conduct with Lisa as tendency evidence. The prior guilty plea and agreed facts established, with the requisite degree of certainty, that the appellant had a tendency to engage in sexual conduct with young girls placed in his foster care, in domestic settings. The Court was satisfied that the probative value of the tendency evidence substantially outweighed any prejudicial effect, as required under the uniform evidence law framework.

Concoction and contamination. The Court addressed whether there was a "real chance" of concoction or contamination between the complainants such that the tendency evidence should have been excluded. It found that, on the evidence, no sufficient basis existed to conclude that the complainants had collaborated or that their accounts were otherwise unreliable by reason of contamination. The timing of disclosures, the circumstances in which each complainant came forward, and other contextual matters supported the independence of the accounts.

Unreasonable verdict. The Court reviewed the trial evidence in detail, including the credibility findings against the appellant and his wife. It concluded that the jury's verdicts on all charged counts were open on the evidence and were not unreasonable or insupportable. The demeanour and conduct of the appellant and his wife in the witness box, their attempts to minimise the seriousness of events surrounding Lisa's disclosure, the consistency of the complainants' accounts with independent evidence, and the implausibility of aspects of the defence case all supported the verdicts.

The Court dismissed the appeal in its entirety, with Harrison J and RA Hulme J both agreeing with Ward JA's reasons without qualification.

Orders Made

  • The appeal against conviction was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that evidence of a prior guilty plea and associated agreed facts can constitute admissible tendency evidence in a subsequent trial, provided the probative value substantially outweighs the risk of unfair prejudice under the Evidence Act 1995 (NSW).
  • Where multiple complainants give evidence in a sexual assault trial, the question of whether a "real chance" of concoction or contamination exists is a factual inquiry; a mere possibility of contact between complainants is insufficient to ground exclusion of tendency evidence.
  • In reviewing whether a verdict is unreasonable, the Court of Criminal Appeal applies the principles from M v The Queen and SKA v The Queen, asking whether it was open to the jury on the whole of the evidence to be satisfied of guilt beyond reasonable doubt.
  • Adverse credibility findings against an accused and a co-witness, including internal inconsistencies and implausible evidence, can properly support a jury's decision to accept the accounts of complainants over those of defence witnesses.
  • No error was established in the trial judge's conduct of the proceedings or in the evidentiary rulings challenged on appeal, reinforcing that tendency evidence of prior sexual offending within a domestic foster care setting can carry significant probative weight.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 66A, 66C(1)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)

Cases
- BP v R; R v BP [2010] NSWCCA 303
- DJV v R [2008] NSWCA 272; (2008) 200 A Crim R 206
- Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254
- Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292
- HML v R [2008] HCA 16; (2008) 235 CLR 334
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Pfennig v R [1995] HCA 7; (1995) 182 CLR 461
- R v AH (1997) 42 NSWLR 702
- R v Beserick (1993) 30 NSWLR 510
- R v Dann [2000] NSWCCA 185
- R v Fung [2002] NSWCCA 479; 136 A Crim R 95
- R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75
- R v SK; SK v R [2011] NSWCCA 292
- R v Thomas Douglas Watkins [2005] NSWCCA 164
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
- TWL v R [2012] NSWCCA 57