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Court of Criminal Appeal 30 May 2016

O’Callaghan v R

[2016] NSWCCA 98

Sexual offences
CRIMINAL LAW INTERLOCUTORY APPEAL JOINT INDICTMENT PRE PRIMARY JUDGE RULED EVIDENCE ADMISSIBLE TENDENCY RULE

Citation: O'Callaghan v R [2016] NSWCCA 98
Court: NSW Court of Criminal Appeal
Date: 30 May 2016
Judge(s): Leeming JA; R A Hulme J; R S Hulme AJ (unanimous)

Background

The applicant faced a joint indictment containing two counts: sexual intercourse without consent with a 14-year-old girl (SF), and committing an act of indecency towards an 11-year-old girl (KJ). Both incidents were alleged to have occurred in the Port Macquarie area, and both complainants described first encountering the applicant when he was driving a red station wagon along Pacific Drive.

The Crown sought to rely on the evidence of each complainant as tendency evidence in relation to the other count. The primary judge in the District Court ruled that evidence was admissible and refused to sever the indictment. The applicant sought leave to appeal that interlocutory ruling to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW).

The Crown, in a concession described by Leeming JA as candid and constructive, acknowledged material errors in the primary judge's reasoning, but argued for a narrower basis on which the tendency evidence could still be admitted. The Court considered both the conceded errors and the Crown's reformulated argument.

  • Whether the primary judge erred in ruling the tendency evidence admissible without properly assessing its probative value, whether that value was "significant" under s 97 of the Evidence Act 1995 (NSW), and whether it substantially outweighed prejudicial effect under s 101.
  • Whether, on a reformulated and narrower tendency reasoning advanced by the Crown, the evidence of each complainant still had significant probative value in respect of the other charge.
  • Whether, even if significant probative value existed, that probative value substantially outweighed the prejudicial effect of the evidence, as required by s 101.
  • Whether the indictment should be severed.

Decision

The Court accepted the Crown's concession that the primary judge had made three material errors: failing to assess the probative value of the tendency evidence, failing to determine whether that probative value was "significant" as required by s 97, and failing to determine whether the probative value substantially outweighed the prejudicial effect under s 101. Those errors alone justified setting aside the ruling.

Leeming JA then examined the Crown's narrower, reformulated tendency argument. The two complainants' accounts differed materially in character. SF described a prolonged course of conduct by the applicant, involving multiple visits to his home, the building of trust, and ultimately sexual intercourse after she was incapacitated. KJ described a single, spontaneous act of indecency by a stranger in the street who followed her in his car and exposed himself. The Court found these accounts were not sufficiently similar to give each account significant probative value in relation to the other charge.

Even accepting that some features were shared (both complainants were young girls, both first encountered the applicant in his car near Pacific Drive), those commonalities were insufficient. The Court reasoned that the prejudicial effect of admitting the evidence was considerable and was not substantially outweighed by whatever limited probative value existed. The reformulated tendency reasoning was therefore also impermissible.

Because the tendency evidence could not be admitted, the basis for maintaining a joint indictment fell away and severance was required.

Orders Made

  • Time extended within which to seek leave to appeal.
  • Leave to appeal granted; appeal allowed.
  • The primary judge's order of 13 October 2015 (admitting the tendency evidence) set aside.
  • Indictment dated 27 March 2015 ordered to be severed, with the Crown to advise which count would proceed to trial on 1 August 2016.

Key Takeaways

  • Under ss 97 and 101 of the Evidence Act 1995 (NSW), a court admitting tendency evidence in a joint criminal trial must expressly assess whether the probative value is "significant" and whether that value substantially outweighs prejudicial effect. Failure to undertake those steps constitutes material error.
  • Shared surface features between two complainants' accounts (such as both being young girls who first encountered the accused in his car) will not, by themselves, establish significant probative value where the nature and character of the alleged conduct differs substantially between the two charges.
  • A spontaneous, opportunistic act of indecency towards a stranger and a protracted course of grooming culminating in sexual intercourse are not, without more, sufficiently similar to support tendency reasoning from one to the other.
  • The Court of Criminal Appeal confirmed that where tendency evidence cannot be admitted to support a joint indictment, severance of the indictment will ordinarily follow.
  • Leeming JA observed, without expressing a view on their merits, that non-publication orders made in the District Court did not comply with s 8(2) of the Court Suppression and Non-publication Orders Act 2010 (NSW), which requires any such order to specify the grounds on which it is made.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 95, 97, 101, 137
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1900 (NSW), s 578A
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 8

Cases
- BC v R [2015] NSWCCA 327
- DAO v The Queen [2011] NSWCCA 63; 81 NSWLR 568
- DSJ v R; NS v R [2014] NSWCCA 77
- El-Haddad v R [2015] NSWCCA 10; 88 NSWLR 93
- House v The King (1936) 55 CLR 499
- IMM v The Queen [2016] HCA 14
- R v Harker [2004] NSWCCA 427
- R v Nassif [2004] NSWCCA 433
- Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528