Citation: RKF v R [2016] NSWCCA 116
Court: NSW Court of Criminal Appeal
Date: 15 June 2016
Judges: Bathurst CJ; Hall J; R A Hulme J
Background
The applicant faced two counts of aggravated indecent assault against his daughter, SF, and one count of intimidation. The alleged assaults occurred while SF was unconscious in hospital following a liver transplant at Westmead Children's Hospital. Two hospital staff members alleged they observed the applicant touching SF's breast on separate occasions; a third alleged she heard him threatening SF after one surgery.
SF had spent much of her early life apart from her father while he was remanded in custody in Thailand and Italy on drug charges, of which he was ultimately acquitted in both jurisdictions. SF had consistently expressed that she did not want contact with him. Defence counsel argued that explaining the background to their estranged relationship required disclosing the applicant's prior periods of incarceration, and that a jury might be unfairly prejudiced by that information.
The applicant filed an election for a judge-alone trial under s 132 of the Criminal Procedure Act 1986 (NSW), arguing that a jury trial would place him in the invidious position of either revealing his criminal history or abandoning a forensically important part of his defence. The primary judge, Judge Traill, refused the application. The applicant sought leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW).
Legal Issues
- Whether the primary judge erred by failing to apply the principle that an accused is entitled to defend himself by all forensically available means.
- Whether the primary judge failed to properly balance the need for objective community standards in assessing indecency allegations against the prejudice to the accused from disclosing his prior criminal history.
- Whether the primary judge erred in concluding that appropriate jury directions could overcome any prejudice arising from disclosure of that history.
- Whether the primary judge took into account extraneous material, specifically parts of SF's recorded interview not relied upon by either party.
Decision
The Court of Criminal Appeal dismissed the appeal unanimously, with Bathurst CJ delivering the principal judgment and Hall J and R A Hulme J agreeing.
On the first ground, the Court distinguished Redman v R [2015] NSWCCA 110, the decision on which the applicant principally relied. Bathurst CJ held that the statement in Redman that an accused should not be forced to choose between prejudice and censoring a defence is not a principle of universal application. Critically, the Court found that the applicant's criminal history was only indirectly relevant to the issues at trial: the history was relevant to explaining SF's estrangement, which in turn might contextualise the observations of hospital staff, but it did not go directly to whether the alleged touching occurred. Where prejudicial evidence has only indirect relevance, it carries lesser weight in the balancing exercise.
On the second ground, the Court applied the well-established House v The King framework for appellate review of discretionary decisions. The primary judge had undertaken the required balancing exercise and no error of the kind that would warrant appellate intervention was demonstrated. The applicant did not show that the primary judge had overlooked a relevant matter, considered an irrelevant matter, or reached an unreasonable result.
On the third ground, the Court confirmed the established assumption that jurors understand and obey directions given by trial judges. There was no basis to conclude that a jury would be unable to follow a direction to disregard adverse inferences arising from the applicant's prior overseas incarceration, particularly given that he had been acquitted of those charges. On the fourth ground, the Court held that even if the primary judge had referred to portions of SF's recorded interview not relied upon by either party, the applicant had not demonstrated that this affected the exercise of her discretion.
Orders Made
No orders were made in this decision.
Key Takeaways
- The principle drawn from Redman v R [2015] NSWCCA 110, that an accused should not be forced to choose between jury prejudice and censoring a defence, is not of universal application; it was decided on its own facts.
- Where prejudicial evidence sought to be led by an accused has only an indirect connection to an issue at trial, that indirect relevance reduces the weight of the accused's prejudice argument in an application for a judge-alone trial under s 132 of the Criminal Procedure Act 1986 (NSW).
- In dismissing a challenge to a discretionary refusal of a judge-alone trial, the Court of Criminal Appeal confirmed that House v The King principles apply: appellate intervention requires an error such as ignoring a relevant consideration, taking into account an irrelevant matter, or reaching an unreasonable conclusion.
- Jurors are presumed capable of following judicial directions, including directions not to draw adverse inferences from evidence of an accused's prior incarceration for offences of which he was acquitted.
- No error is established merely because a primary judge referred to material not relied upon by either party, unless the applicant can show that reference actually affected the exercise of the discretion.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 132
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1900 (NSW), s 61M
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
Cases:
- House v The King [1936] HCA 40; 55 CLR 499
- Redman v R [2015] NSWCCA 110
- R v Belghar [2012] NSWCCA 86
- DAO v R [2011] NSWCCA 63; 81 NSWLR 568
- R v BWM (1998) 91 A Crim R 260
- A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244
- Cheih-Wei Lin v R [2015] NSWCCA 264
- Robinson v R [2016] NSWCCA 108
- Turnbull v R [2016] NSWCCA 109