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Court of Criminal Appeal 19 December 2017

CA v R

[2017] NSWCCA 324

Sexual offences
CRIMINAL LAW CONVICTION APPEAL WHETHER EVIDENCE RELEVANT

Citation: CA v R [2017] NSWCCA 324
Court: Court of Criminal Appeal (NSW)
Date: 19 December 2017
Judge(s): Beazley ACJ, Walton J, N Adams J (reasons by N Adams J)

Background

The appellant was convicted by a jury of five counts of aggravated indecent assault against a child, referred to by the pseudonym "John," who was the son of a family friend. The offences occurred across two periods: between 2006 and 2007 (when John was aged 10 or 11) and between 2011 and 2012 (when John was 15). The appellant was sentenced to an aggregate term of four years' imprisonment with a non-parole period of two years and three months.

A separate incident allegedly occurred in October 2009, when the families were on holiday in Victoria. John told police that the appellant grabbed his penis at a lookout, causing John to react by hitting him. Because this incident occurred outside New South Wales, it could not be charged as a count on the indictment. The prosecution instead sought to use it as "context" evidence.

The appellant did not seek leave to appeal against his sentence. His sole ground of appeal was that the trial judge erred in admitting evidence of the Victorian lookout incident.

  • Whether evidence of the lookout incident was relevant within the meaning of s 55 of the Evidence Act 1995 (NSW), in that it could rationally affect the jury's assessment of the probability of facts in issue
  • Whether, even if relevant, the evidence ought to have been excluded under s 137 of the Evidence Act, because its probative value was outweighed by the danger of unfair prejudice to the appellant
  • Whether the trial judge's directions to the jury adequately addressed the risk that the jury might misuse the evidence by engaging in impermissible tendency reasoning

Decision

N Adams J (with Beazley ACJ and Walton J agreeing) dismissed the appeal on all grounds. Her Honour found that evidence of the lookout incident was relevant under s 55 because it could rationally affect the jury's assessment of the credibility of John's account and the probability that the charged offences occurred. The incident fell between the two tranches of charged conduct and was capable of providing context for the relationship between the appellant and John.

On the s 137 question, the Court found no error in the trial judge's balancing exercise. The evidence carried significant probative value, and the identified risk of unfair prejudice was the possibility of impermissible tendency reasoning by the jury. The trial judge gave detailed directions warning the jury against using the evidence in that way.

The Court reaffirmed the well-established principle, drawn from McHugh J's observations in Gilbert v R (2000) 201 CLR 414, that jury trials proceed on the assumption that jurors follow the directions given by the trial judge. The Court found no basis to conclude that the evidence was so prejudicial as to make it impossible for a properly directed jury to use it only for its permissible purpose. The appellant's contention that the balancing exercise should have been struck differently was not accepted.

Orders Made

• The appeal is dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that evidence of an uncharged act occurring interstate may be admitted as context evidence where it is relevant under s 55 of the Evidence Act 1995 (NSW), even though it cannot be charged as a count on the indictment.

  • Under s 137 of the Evidence Act, a trial judge must weigh the probative value of context evidence against the danger of unfair prejudice; the Court found that detailed jury directions about the limited use of such evidence can sufficiently address the risk of impermissible tendency reasoning.

  • The foundational principle from Gilbert v R was applied: criminal jury trials operate on the assumption that jurors are true to their oath and follow the trial judge's directions, and departing from that assumption would undermine the integrity of the jury system itself.

  • No error will be established in a s 137 ruling merely because an appellate court might have struck the balance differently; the appellant must demonstrate that the trial judge's exercise of the discretion was wrong, applying the principles in House v The King (1936) 55 CLR 499.

  • Sufficient probative value existed where the uncharged conduct occurred between two tranches of charged offending and was capable of providing context for the nature of the relationship between the appellant and the complainant.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2)
- Evidence Act 1995 (NSW), ss 55, 97, 101, 137

Cases:
- Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
- House v The King (1936) 55 CLR 499
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
- R v Shamouil (2006) 6 NSWLR 228; [2006] NSWCCA 112
- R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121
- KJS v R (2014) 86 NSWLR 603; [2014] NSWCCA 27
- DJV v R (2008) 200 A Crim R 206; [2008] NSWCCA 272
- R v Adams (No 2) [2016] NSWSC 1359
- Can v The Queen [2007] NSWCCA 176
- Qualtieri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95
- R v BD (1997) 94 A Crim R 131
- R v Arvidson (2008) 185 A Crim R 428; [2008] NSWCCA 135
- Abbosh v The Queen, Bene v The Queen [2011] NSWCCA 265
- L'Estrange v R [2011] NSWCCA 89
- Riley v The Queen [2011] NSWCCA 238
- Vickers v The Queen (2006) 160 A Crim R 195; [2006] NSWCCA 60
- R v SJRC [2007] NSWCCA 142
- R v Young (1996) 90 A Crim R 80
- R v Wickham (unreported, Court of Criminal Appeal (NSW), 17 December 1991)