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Court of Criminal Appeal 28 August 2017

R v SG

[2017] NSWCCA 202

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW APPEAL ERRORS ESTABLISHED EVIDENCE RELEVANT AND ADMISSIBLE CROWN APPEAL ALLOWED

Citation: R v SG [2017] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 28 August 2017
Judges: Hoeben CJ at CL, McCallum J, Bellew J

Background

The respondent faced eight counts of assault, indecent assault, and sexual assault against his wife, with the alleged offending occurring on 23, 25, 28, and 29 December 2015. Three of those counts related to a single incident on 23 December 2015, during which the couple's daughter, then aged eight, was lying in the same bed as her mother at the time of the alleged offending.

The daughter, aged ten at the time of the appeal, had given a recorded interview to police on 28 January 2016. Her account described waking during the night and, while hiding beneath a blanket, observing her father's conduct toward her mother. At trial, counsel for the respondent objected to the admissibility of the daughter's evidence, and the trial judge excluded it.

The Director of Public Prosecutions appealed that ruling to the Court of Criminal Appeal. The Crown appeal was limited to the exclusion of the daughter's evidence and did not challenge the trial judge's separate decision to exclude the evidence of the other child.

  • Whether the exclusion of the child's evidence "substantially weakened" the prosecution's case, so as to enliven the Court of Criminal Appeal's jurisdiction under s 5F(3A) of the Criminal Appeal Act 1912 (NSW)
  • Whether the trial judge correctly found that the child's evidence was not relevant under s 55 of the Evidence Act 1995 (NSW)
  • Whether, even if relevant, the child's evidence should have been excluded under s 137 of the Evidence Act 1995 on the basis that its probative value was substantially outweighed by the danger of unfair prejudice to the respondent

Decision

Jurisdiction: The Court first considered whether the Crown's right of appeal was enlivened. Because the child's account was the only corroborative evidence available in relation to the 23 December 2015 counts, the Court held that its exclusion clearly and substantially weakened the prosecution's case. The threshold under s 5F(3A) was satisfied.

Relevance (Ground 1): The trial judge had not correctly identified the facts in issue when assessing relevance. The test under s 55 of the Evidence Act asks whether the evidence could rationally affect the assessment of the probability of a fact in issue. The child's account, taken at its highest, was capable of corroborating specific aspects of the complainant's version of the 23 December incident. The Court found that the trial judge erred by, among other things, having regard to whether the jury might reject the child's evidence as confusing rather than whether it could rationally affect a finding on a fact in issue. The evidence was relevant.

Exclusion under s 137 (Ground 2): The trial judge identified the unfair prejudice as an inability on the respondent's part to properly test the child's evidence. The Court rejected this reasoning. Cross-examination remained available to the respondent at trial as a means of testing the child's assertions, and no proper basis for finding an inability to test the evidence was established. The Court found that the probative value of the evidence was high and the danger of unfair prejudice was low. Section 137 was therefore not engaged, and the exclusion on that ground was also in error.

The Court declined to remit the matter to the District Court for further argument, noting it had been fully argued before the Court of Criminal Appeal. The evidence was declared admissible.

Orders Made

  • The appeal by the Director of Public Prosecutions against the determination of Judge Williams SC (dated 5 May 2017) excluding the child's evidence is allowed.
  • The determination of Judge Williams SC excluding the child's evidence is set aside.
  • The child's evidence is admissible in the proceedings against the respondent.

Key Takeaways

  • Under s 5F(3A) of the Criminal Appeal Act 1912, the Crown's right to appeal an evidentiary ruling requires that the ruling "eliminates or substantially weakens" the prosecution's case; where excluded evidence is the only available corroboration for the complainant, that threshold will be met.
  • The relevance test under s 55 of the Evidence Act 1995 requires a court to identify the facts in issue before assessing whether the evidence could rationally affect the probability of any such fact. A trial judge who instead considers whether a jury might reject the evidence as confusing applies the wrong inquiry.
  • Where an accused retains the ability to cross-examine a witness at trial, that opportunity to test the evidence ordinarily undermines any claim of unfair prejudice under s 137 of the Evidence Act 1995.
  • Probative value under s 137 must be assessed by taking the evidence at its highest; an eyewitness account capable of corroborating a complainant's version of events carries high probative value.
  • In dismissing the possibility of remittal, the Court of Criminal Appeal confirmed it may finally determine an admissibility question itself where the matter has been fully argued before it, rather than returning the issue to the trial court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 61I, 61L
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Evidence Act 1995 (NSW), ss 55, 137, Dictionary

Cases:
- Festa v R (2001) 208 CLR 593; [2001] HCA 72
- Hughes v The Queen [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Nye v State of New South Wales & ors [2002] NSWSC 1270
- R v Ali [2015] NSWCCA 72
- R v Burton [2013] NSWCCA 335
- R v Dickman [2017] HCA 24
- Zaknic Pty Limited v Svelte Corp Pty Limited (1995) 140 ALR 701