Citation: [2015] NSWCCA 288
Court: NSW Court of Criminal Appeal
Date: 20 November 2015
Judges: Beazley P; Hall J; Wilson J
Background
The appellant was convicted at trial of recklessly inflicting actual bodily harm with intent to have sexual intercourse, an offence under s 61K(a) of the Crimes Act 1900 (NSW). The charges arose from an incident in February 2013 in which the complainant accepted what she believed was an offered lift, but the appellant drove her to a remote area near Botany Road and Foreshore Road and subjected her to a violent physical assault. Two alternative charges, of indecent assault and assault occasioning actual bodily harm, were included on the indictment.
At trial, the Crown led tendency evidence under s 97 of the Evidence Act 1995 (NSW) concerning a 2006 incident, to which the appellant had previously pleaded guilty to a charge of indecent assault. The jury convicted the appellant of the primary charge. He received a sentence of five years imprisonment with a non-parole period of three years and nine months.
The appellant sought leave to appeal his conviction on two grounds: first, that the trial judge erred in admitting the tendency evidence; and second, that the trial judge failed to adequately put the defence case to the jury, causing a miscarriage of justice.
Legal Issues
- Whether a single prior incident is capable of founding admissible tendency evidence under s 97 of the Evidence Act 1995 (NSW)
- Whether the probative value of the tendency evidence substantially outweighed its prejudicial effect, satisfying the threshold in s 101 of the Evidence Act 1995 (NSW)
- Whether the trial judge failed in the obligation to put the defence case to the jury
- Whether leave to advance ground 2 should be granted under r 4 of the Criminal Appeal Rules (NSW), given that no objection was taken at trial
Decision
Ground 1: Admissibility of tendency evidence
The Court rejected the argument that tendency evidence must arise from multiple incidents demonstrating a pattern of behaviour or modus operandi before it can be admissible under s 97. A single prior incident can constitute admissible tendency evidence, even if it provides a weaker foundation than multiple incidents might. The Court held that the 2006 incident was not so remote or isolated as to deprive it of the significance required by s 97.
On the s 101 question, the Court found no error in the trial judge's decision to admit the evidence. The critical issues at trial were the nature of the assault and the appellant's intention at the relevant time. Given those issues, the probative value of the tendency evidence was assessed as very high, and the Court was satisfied it substantially outweighed any prejudicial effect.
Ground 2: Failure to put the defence case
The Court confirmed the general principle that a trial judge must fairly and accurately put both the Crown and defence cases to the jury, with that obligation assessed in light of the nature, length, and complexity of the trial and the way the parties conducted their cases. Here, the trial judge had summarised the evidence, explained the relevant law, and directed the jury appropriately.
Critically, no objection was taken at trial to the summing-up, and no application was made for further directions. The Court reiterated that the absence of any such objection is cogent evidence that experienced trial counsel saw no injustice or error in how the matter was handled. Because no request for further directions had been made, r 4 of the Criminal Appeal Rules applied, requiring the appellant to obtain leave. The Court refused leave, finding no departure from the essential requirements of the law and no real injustice.
Orders Made
- Leave to appeal refused in respect of ground 2
- Appeal dismissed
Key Takeaways
- Under s 97 of the Evidence Act 1995 (NSW), tendency evidence is not confined to cases involving multiple incidents or a pattern of conduct. A single prior incident can satisfy the statutory requirements, though the evidentiary foundation it provides may be weaker than that supplied by multiple incidents.
- Where the central trial issues concern the nature of an assault and the defendant's intention, the probative value of relevant tendency evidence may be assessed as very high for the purposes of the s 101 balancing exercise.
- The obligation on a trial judge to put the defence case fairly to the jury falls to be assessed contextually, by reference to the length and complexity of the trial and how the parties conducted their cases.
- A failure to object at trial, or to seek further directions during summing-up, is treated as cogent evidence that counsel in the courtroom saw no injustice or error. This principle carries significant procedural weight in appeals under r 4 of the Criminal Appeal Rules (NSW).
- No error was established on either ground, and the Court of Criminal Appeal refused leave on the second ground and dismissed the appeal outright.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 59, s 61K(a)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(b)
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), ss 97, 101
Cases:
- Bin Sulaeman v R [2013] NSWCCA 283
- Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1
- DAO v R [2011] NSWCCA 63
- Domican v R [1992] HCA 13; (1992) 173 CLR 555
- Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Pemble v R [1971] HCA 20; (1971) 124 CLR 107
- Pfennig v R [1995] HCA 7; (1995) 182 CLR 461
- Poniris v R [2014] NSWCCA 100
- R v Abusafiah (1991) 24 NSWLR 531
- R v Lock (1997) 91 A Crim R 356
- R v Lockyer (1996) 89 A Crim R 457
- R v Murray (1987) 11 NSWLR 12
- R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75
- R v Tripodina (1988) 35 A Crim R 183
- RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
- Shepherd v R [2011] NSWCCA 245
- Vickers v R [2006] NSWCCA 60; (2006) 160 A Crim R 195