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Court of Criminal Appeal 24 May 2017

Kautoga v R

[2017] NSWCCA 107

Sexual offences
CRIMINAL LAW APPEAL AGAINST INTERLOCUTORY JUDGMENT HELD APPEAL DISMISSED

Citation: Kautoga v R [2017] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 24 May 2017
Judge(s): Beazley ACJ; Adamson J; Wilson J

Background

The applicant faced a five-count indictment alleging sexual offences against four complainants. The alleged offending occurred on two separate dates: one count related to an incident in a Canterbury park in January 2013, and four counts arose from a cluster of incidents in and around Fairlight in the early hours of 10 March 2013. Counts 2 and 3 involved the same complainant at a Berry Avenue residence, while counts 4 and 5 involved different complainants at nearby locations on the same morning.

Before trial, the applicant brought a notice of motion in the District Court seeking to sever the indictment. He sought separate trials for counts 1, 4, and 5, with counts 2 and 3 to proceed together. His concern was that evidence admissible as tendency or coincidence evidence on some counts would be inadmissible, or admissible only for a limited purpose, on others, creating a real risk of unfair prejudice.

The trial judge, Woodburne SC DCJ, refused the application, finding it was in the interests of justice for all counts to be tried together and that any prejudicial effect from cross-admissible evidence could be sufficiently ameliorated by jury directions. The applicant sought leave to appeal that interlocutory ruling to the Court of Criminal Appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW).

  • Whether the trial judge erred in refusing to sever the indictment and order separate trials for counts 1, 4, and 5
  • Whether the trial judge made any error in her rulings on the admissibility of tendency and coincidence evidence under ss 97, 98, and 101 of the Evidence Act 1995 (NSW)
  • Whether it was open to the trial judge to find that the risk of unfair prejudice to the applicant could be sufficiently ameliorated by directing the jury

Decision

Adamson J (with whom Beazley ACJ and Wilson J agreed) granted leave to appeal but dismissed the appeal. The Court found no error in the trial judge's exercise of her discretion to refuse severance.

The trial judge had correctly identified the applicable statutory provisions under the Criminal Procedure Act 1986 (NSW), including s 29 (which permits joinder where offences are part of a series of similar character) and s 21 (which allows severance where prejudice warrants it). Her Honour had also correctly applied the principles governing tendency and coincidence evidence under the Evidence Act.

No error was established in the trial judge's rulings on admissibility or in her weighing of probative value against the danger of unfair prejudice under ss 101 and 137 of the Evidence Act. In particular, the Court was not persuaded that it was impermissible for the trial judge to conclude that jury directions could adequately address the risk of prejudice arising from evidence that was admissible for one purpose but not another.

The Court observed that the applicant's submissions had largely reprised the arguments put below without identifying any error of the kind required by House v The King (1936) 55 CLR 499, which sets the threshold for appellate interference with a discretionary judgment. The Crown's submission to that effect had considerable force. Nevertheless, the Court granted leave because the applicant's argument that it was not open to find that prejudice could be ameliorated by directions raised a question of sufficient substance to warrant consideration.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that no error was established in the trial judge's refusal to sever a five-count indictment, where the offences were sufficiently connected to warrant joint trial under the Criminal Procedure Act 1986 (NSW).
  • A trial judge's finding that jury directions can ameliorate the risk of prejudice arising from tendency or coincidence evidence that is admissible for one purpose but not another was held to be an available and proper conclusion in the circumstances.
  • Under House v The King, appellate interference with a discretionary ruling of this kind requires identification of a specific error in the exercise of the discretion. Repeating the arguments made below, without identifying such an error, will generally be insufficient.
  • Appellate review of a ruling under s 97 of the Evidence Act is limited, as confirmed by reference to DAO v The Queen: the reviewing court asks whether the judge applied correct principles and whether the evaluative conclusion reached was open, not whether it would have reached the same conclusion.
  • In granting leave despite ultimately dismissing the appeal, the Court acknowledged that an argument capable of producing a different outcome if accepted is sufficient to justify granting leave under s 5F(3)(a).

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
- Criminal Procedure Act 1986 (NSW), ss 21, 21(2), 29, 29(1)(c), 29(3)
- Evidence Act 1995 (NSW), ss 97, 98, 101, 101(2), 137

Cases:
- DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
- House v The King (1936) 55 CLR 499
- R v Gale; R v Duckworth (2012) 217 A Crim R 487; [2012] NSWCCA 174