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Court of Criminal Appeal 26 February 2016

AC v R

[2016] NSWCCA 21

Sexual offencesAssault & violence
CRIMINAL LAW EVIDENCE OF UNCHARGED ACTS NOT OPPOSED TENDENCY EVIDENCE WHETHER INCONSISTENT VERDICTS WHETHER VERDICTS UNREASONABLE EVIDENCE TENDENCY EVIDENCE

Citation: AC v R [2016] NSWCCA 21
Court: NSW Court of Criminal Appeal
Date: 26 February 2016
Judges: Hidden J, Davies J, Adamson J

Background

The appellant stood trial before Judge Huggett and a jury on eleven counts arising from alleged sexual and physical offending against two young children: his stepdaughter TF and his biological daughter MC. The offences included sexual intercourse with a child under ten, aggravated indecent assault, and multiple assault charges. The conduct alleged spanned several years and occurred across various locations in Sydney.

The jury convicted the appellant on counts 1 to 6 (relating to TF) and count 10 (relating to MC), and acquitted him on counts 7, 9, and 11. He was sentenced to an aggregate term of 22 years' imprisonment with a non-parole period of 15 years.

The appellant appealed against conviction on the grounds that the trial judge erred in admitting and directing the jury on tendency evidence, that two of the assault verdicts were inconsistent with the acquittal on a related count, and that a further assault verdict was unreasonable given the state of the evidence. No appeal was brought against sentence.

  • Whether the trial judge erred in permitting the Crown to use evidence of uncharged acts as tendency evidence under s 97 of the Evidence Act 1995 (NSW), including whether the evidence had significant probative value and whether that value was outweighed by prejudicial effect.
  • Whether the use of tendency evidence caused a miscarriage of justice, given the manner in which the evidence was admitted and directed.
  • Whether the guilty verdicts on counts 5 and 6 (assault occasioning actual bodily harm) were unreasonable or inconsistent with the acquittal on the related count 7.
  • Whether the guilty verdict on count 10 (assault occasioning actual bodily harm against MC) was unreasonable or unsupported by the evidence.

Decision

Tendency evidence (Grounds 1a and 1b). The Court examined the procedural course by which tendency evidence was handled at trial. Defence counsel had not objected to the Crown leading evidence of uncharged acts, had not raised issues of similarity at the tendency argument, and had agreed to the trial judge deferring the tendency ruling until after the close of the defence case. The Court found that the tendency evidence had significant probative value: it established tendencies to insert objects into the anuses of very young children, to inflict violence on them, to burn them, and to sexually assault them. The Court was not persuaded that the probative value was outweighed by unfair prejudice. No miscarriage of justice was established.

Inconsistent verdicts on counts 5, 6 and 7 (Ground 3). The appellant argued that because the jury acquitted on count 7 (also an assault occasioning actual bodily harm involving the same general conduct of standing or jumping on TF's stomach), it was inconsistent for the jury to convict on counts 5 and 6 involving substantially similar conduct. The Court rejected this argument. It noted that the jury is entitled to reach different verdicts on counts even when the underlying conduct is similar in nature, and that an acquittal does not necessarily undermine a conviction on a related count. The verdicts were open to the jury on the evidence.

Reasonableness of count 10 verdict (Ground 4). The appellant contended that the verdict finding him guilty of assaulting MC could not be sustained given weaknesses in the complainant's evidence. The Court acknowledged those weaknesses but pointed to extensive corroborating evidence: MC was observed immediately after being returned to her mother with significant bruising, which was photographed and confirmed by medical examination the same day. The examining paediatrician concluded the bruising could not all be attributed to accidental causes, and this conclusion was not substantially displaced by the appellant's own account of a cot fall. The tendency evidence (relating to violence against young children) was also available to the jury when assessing the appellant's evidence on count 10. The Court was comfortably satisfied it was open to the jury to convict beyond reasonable doubt.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that tendency evidence under s 97 of the Evidence Act 1995 (NSW) requires the court to be satisfied that the evidence has significant probative value that is not substantially outweighed by the danger of unfair prejudice. Meeting that threshold was assessed in light of the specific tendencies identified and the particular counts to which they were directed.
  • Deferring a tendency ruling until after the close of evidence is an unusual procedure. The Court considered the agreed procedural course, including the absence of any objection from defence counsel to the similarity of the acts relied upon, in evaluating whether a miscarriage of justice had occurred.
  • An acquittal on one count does not automatically render a conviction on a closely related count unreasonable or inconsistent. The jury is entitled to assess each count separately on the evidence before it.
  • Where a complainant's evidence is weakened in cross-examination, strong independent corroboration, including medical findings and contemporaneous observation, can support a finding of guilt beyond reasonable doubt.
  • In dismissing all grounds of appeal, the Court reinforced that tendency evidence relating to repeated physical and sexual mistreatment of young children can carry significant probative value capable of justifying its use across multiple counts in the same trial.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 97

Cases
- BP v R; R v BP [2010] NSWCCA 303
- Colby v R [1999] NSWCCA 261
- Dungay v R [2010] NSWCCA 82
- Hughes v R [2015] NSWCCA 330
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 60
- O'Keefe v R [2009] NSWCCA 121
- Osland v R [1998] HCA 75; (1998) 197 CLR 316
- Potts v R [2012] NSWCCA 229
- R v Ford [2009] NSWCCA 303; (2009) 201 A Crim R 451
- R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
- Saoud v R [2014] NSWCCA 136
- Sokolwskyji v R [2014] NSWCCA 55
- Zreika v R [2012] NSWCCA 44