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28
Court of Criminal Appeal 21 December 2015

Hughes v R

[2015] NSWCCA 330

Also reported as (2015) 93 NSWLR 474
Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULT OFFENCES EFFECT OF PUBLICITY ON JURY APPLICATION FOR VOIR DIRE APPLICATION TO CROSS

Citation: Hughes v R [2015] NSWCCA 330
Court: NSW Court of Criminal Appeal
Date: 21 December 2015
Judges: Beazley P; Schmidt J; Button J

Background

The applicant was convicted by jury of ten sexual offences committed between 1984 and 1990 against four complainants, each under 16 years of age at the time of the alleged offending. The jury could not reach a verdict on a further count involving a fifth complainant. On 16 May 2014, the sentencing judge imposed an aggregate sentence of 10 years and 9 months with a non-parole period of six years.

The applicant appealed against both conviction and sentence on 14 grounds, contending that a combination of errors amounted to a miscarriage of justice. Key concerns included adverse pre-trial publicity and social media, the admission of tendency evidence across the counts involving different complainants, the conduct of the Crown Prosecutor at trial, and the severity of the sentence.

Leave to appeal against sentence was sought and granted. Leave to raise one ground of the conviction appeal (relating to adequacy of tendency evidence directions) was refused.

  • Whether the trial judge erred in refusing to permanently stay the indictment due to adverse pre-trial publicity, including publicity via social media
  • Whether the trial judge erred in admitting tendency evidence and refusing to order separate trials for each complainant's counts
  • Whether the trial judge's directions to the jury about tendency evidence, and the risks of contamination and concoction, were adequate
  • Whether the trial miscarried as a result of improper cross-examination and final address by the Crown Prosecutor
  • Whether the sentence imposed was manifestly excessive, having regard to objective seriousness, sentencing practices at the time of the offending, extra-curial punishment (harm suffered outside the formal sentencing process, such as assault in custody), and victim impact evidence

Decision

Permanent stay and publicity. The Court of Criminal Appeal confirmed that an application to permanently stay a trial cannot be assessed prospectively in isolation. Where a trial has proceeded after a stay application is refused, the appellate court considers what actually occurred at trial, including the measures taken to ensure fairness and their outcomes. On the facts, the sequence of events at trial left no room to doubt that the jury decided the case on the evidence, in accordance with the judge's directions. The Court noted that, notwithstanding developments in technology and social media, juries are expected to decide cases on the evidence and in accordance with judicial directions.

Tendency evidence. The Court confirmed that tendency evidence admitted under s 97 of the Evidence Act 1995 (NSW) does not require proof of an "underlying unity", a "modus operandi", or a "pattern of conduct". The governing requirement is that the evidence have "significant probative value", although the nature and extent of any similarity between the conduct in question and the charged conduct remains relevant to that assessment. The Court also confirmed that tendency evidence need not show a tendency to commit the precise acts constituting the offence charged; the question is whether the conduct allows an inferential process by which the accused was more likely to have acted in the relevant way, or held the relevant state of mind, on the occasion charged. On the question of contamination and concoction, the Court held that a judge's role is not to make findings about the likely weight or acceptance of evidence by a jury. Given the evidence of prior complaints in this case, there were no competing inferences that would have required the trial judge to approach the admissibility question differently.

Crown Prosecutor's conduct. The Court found that the cross-examination of the applicant did not breach the obligations governing Crown prosecutors, nor did it reverse the onus of proof. Aspects of the Crown Prosecutor's final address were found to be inappropriate, described in some instances as seriously so. However, the Court concluded that the trial judge's firm directions to the jury were a legitimate response, and no miscarriage of justice resulted.

Sentence. The Court found no error in the sentencing judge's factual findings or in the assessment of the seriousness of the offending. The sentencing judge had properly considered the sentencing practices current at the time the offences were committed. While the applicant had suffered disturbing incidents of extra-curial punishment in custody, the Court found that the sentencing judge had anticipated this possibility and the weight assigned to it was not attended by error. The Court nonetheless referred to the conditions of the applicant's custody as raising matters of public interest warranting referral to relevant authorities.

Orders Made

  • Leave to raise ground 5 of the conviction appeal refused
  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • In dismissing the application for a permanent stay, the Court of Criminal Appeal confirmed that appellate review of such a refusal requires consideration of what actually transpired at trial, not merely a prospective assessment made at the time of the original application.
  • Under s 97 of the Evidence Act 1995 (NSW), tendency evidence requires "significant probative value" but does not need to demonstrate an underlying unity, modus operandi, or pattern of conduct; the degree of similarity between the tendency conduct and the charged conduct is nonetheless relevant to the probative value assessment.
  • Tendency evidence need not establish a tendency to commit the exact acts charged; it is sufficient if the conduct supports an inference that the accused was more likely to have acted in a particular way, or held a relevant state of mind, on the occasion in question.
  • The assessment under s 101(2) of the Evidence Act as to whether the prejudicial effect of tendency evidence substantially outweighs its probative value is an evaluative judgment, not the exercise of a discretion; it is reviewable on appeal under the principles in House v The King.
  • Where aspects of a Crown Prosecutor's final address are found to be seriously inappropriate, a miscarriage of justice does not automatically follow; firm corrective directions from the trial judge may be a sufficient and legitimate response in the circumstances.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 101
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), r 4
- Children (Criminal Proceedings) Act 1987 (NSW)
- Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases
- Dupas v The Queen [2010] HCA 20; 241 CLR 237
- DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758
- BJS v R (No 2) [2013] NSWCCA 123; 231 A Crim R 532
- Saoud v R [2014] NSWCCA 136; 87 NSWLR 481
- R v Ford [2009] NSWCCA 306; 201 A Crim R 451
- DAO v R [2011] NSWCCA 63; 81 NSWLR 568
- FB v R; R v FB [2011] NSWCCA 217
- Doyle v R; R v Doyle [2014] NSWCCA 4
- Elomar v R; Hasan v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206
- BP v R; R v BP [2010] NSWCCA 303
- Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233
- R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
- Ceissman v R [2015] NSWCCA 74
- House v The King [1936] HCA 40; 55 CLR 499
- Featherstone v R [2008] NSWCCA 71; 183 A Crim R 540
- Dousha v R [2008] NSWCCA 263
- R v Slack [2004] NSWCCA 128
- Crofts v R [1996] HCA 22; 186 CLR 427