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Court of Criminal Appeal 13 March 2015

R v Knight

[2015] NSWCCA 34

Sexual offences
CRIMINAL LAW CROWN APPEAL INTERLOCUTORY JUDGMENT EXCLUSION OF TENDENCY EVIDENCE RIGHT OF APPEAL WHETHER

Citation: R v Knight [2015] NSWCCA 34
Court: NSW Court of Criminal Appeal
Date: 13 March 2015
Judges: Ward JA at [1]; Simpson J at [55]; Davies J at [65]

Background

The respondent faced trial in the District Court at Griffith on one count of indecent assault and two counts of sexual assault against a teenage complainant ("T"), who alleged she was asleep in a caravan when the respondent assaulted her. The Crown served a tendency notice under s 97 of the Evidence Act 1995 (NSW), seeking to adduce evidence from a second teenage complainant ("A"). A alleged she had also been asleep when the respondent got on top of her and kissed her. The respondent was facing a separate, upcoming trial regarding the alleged offences against A.

On the first day of trial, the trial judge ruled the tendency evidence admissible, finding it had significant probative value that outweighed its prejudicial effect. The following day, after the respondent applied for an adjournment, the trial judge reversed his ruling and excluded the tendency evidence. The Crown appealed that second ruling to the Court of Criminal Appeal under s 5F(3A) of the Criminal Appeal Act 1912 (NSW).

  • Whether the Court of Criminal Appeal had jurisdiction to hear the Crown's interlocutory appeal against the exclusion of the tendency evidence
  • Whether the trial judge erred in reversing his admissibility ruling on the second day of trial
  • Whether the tendency evidence met the requirements for admissibility under ss 97 and 101 of the Evidence Act 1995 (NSW)
  • Whether the Crown's appeal should result in a court order that the evidence be declared admissible

Decision

The Court of Criminal Appeal allowed the DPP's appeal and set aside the second ruling made on 4 November 2014. The Court found that the trial judge had made a fundamental procedural error: the application before him on the second day was for an adjournment of the trial, not an application to reverse the admissibility ruling made the day before. No formal application to reverse that ruling was made, and no fresh findings under ss 97 or 101 of the Evidence Act were articulated. Setting aside the second ruling therefore restored the first ruling, under which the tendency evidence was admissible.

The Court also identified an independent reason supporting the same outcome. The quality of the tendency evidence had not changed overnight, meaning the significant probative value the trial judge had identified on 3 November remained on 4 November. The Court noted that, to the extent the trial judge's second ruling rested on the prejudicial effect of the evidence outweighing its probative value (the s 101 test), the prejudice identified, namely the respondent being disadvantaged when cross-examining A about her delay in complaining, did not justify reversing the earlier finding.

However, the Court declined the Crown's invitation to go further and make an order declaring the evidence admissible. The correctness of the original 3 November ruling was not the subject of the appeal, and no error in that ruling had been identified. Restoring that ruling was the extent of the appropriate relief.

Orders Made

• Allow the DPP's appeal and set aside the order of 4 November
• Restore the judgment and order of 3 November that the tendency evidence was admissible

Key Takeaways

  • A trial judge may not effectively reverse an interlocutory admissibility ruling without a formal application to do so and without making fresh findings under the applicable statutory tests.
  • Where the quality of tendency evidence has not changed between two consecutive rulings, a reversal of the first ruling is difficult to justify on the basis that the evidence's probative value is no longer significant.
  • Under s 97 of the Evidence Act 1995 (NSW), tendency evidence need only demonstrate a tendency to act in a particular way; it does not need to have been manifest on many occasions (following R v Ford [2009] NSWCCA 306).
  • The Court of Criminal Appeal confirmed it has jurisdiction under s 5F(3A) of the Criminal Appeal Act 1912 (NSW) to hear Crown interlocutory appeals against evidentiary rulings that eliminate or substantially weaken the prosecution case.
  • Allowing a Crown appeal and restoring an earlier admissibility ruling does not automatically carry with it a declaration that the evidence is admissible; the appellate court's relief is limited to what was actually in issue on the appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Evidence Act 1995 (NSW), ss 97, 101

Cases
- House v The King [1936] HCA 40; (1936) 55 CLR 449
- R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308
- R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451
- R v GAC [2007] NSWCCA 315; (2007) 178 A Crim R 408
- R v Nassif [2004] NSWCCA 433
- R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
- R v Smith [2008] NSWCCA 247; (2008) 190 A Crim R 8
- R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434
- Saoud v R [2014] NSWCCA 136
- Sokolowskyj v R [2014] NSWCCA 55