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Court of Criminal Appeal 10 September 2018

DS v R

[2018] NSWCCA 195

Sexual offences
CRIMINAL LAW CONVICTION APPEAL SEXUAL INTERCOURSE WITHOUT CONSENT ADMISSIBILITY OF TENDENCY EVIDENCE TENDENCY EVIDENCE PROBATIVE VALUE

Citation: DS v R [2018] NSWCCA 195
Court: NSW Court of Criminal Appeal
Date: 10 September 2018
Judge(s): Basten JA at [1]; Wilson J at [14]; Lonergan J at [119]

Background

The appellant (DS) was the uncle of the complainant (SS). The charges against DS concerned alleged sexual offending committed when DS was between 15 and 18 years old and SS was between 7 and 9 years old. DS faced three counts of sexual offences in the District Court, spanning incidents alleged to have occurred between 1983 and 1986.

The jury returned a guilty verdict on count 3 (homosexual intercourse with SS when SS was 9 years old) but was discharged without verdicts on counts 1 and 2. DS was sentenced to five years' imprisonment with a non-parole period of two years and six months.

At trial, the prosecution led tendency evidence concerning DS's earlier alleged conduct with his niece (BS), specifically that at approximately age 11 he had placed her hand on his penis. Charges arising from that earlier conduct had been heard separately, and DS had been acquitted because the prosecution failed to rebut the common law presumption of doli incapax, meaning it could not prove that DS, as a child under 14, had sufficient moral and intellectual development to appreciate the wrongfulness of his actions.

  • Whether evidence of prior conduct that was the subject of an acquittal was admissible as tendency evidence in the subsequent trial
  • Whether the basis of the earlier acquittal (failure to rebut doli incapax, rather than a finding that the conduct did not occur) affected admissibility
  • Whether tendency evidence could be limited to proof of the actus reus (the physical act) alone, so as to avoid controvening the acquittal on the question of criminal intent
  • Whether the trial judge's directions to the jury on the use of the tendency evidence were adequate
  • Whether the guilty verdict on count 3 was unreasonable

Decision

The Court of Criminal Appeal unanimously upheld the conviction appeal and quashed the conviction. Wilson J, with whom Lonergan J agreed, found error in the way the tendency evidence was left to the jury. Basten JA agreed with that conclusion but went further, finding the tendency evidence should have been excluded as inadmissible in the first place.

On the question of admissibility, Basten JA identified three analytical steps. First, a prosecutor cannot rely on prior conduct the subject of an acquittal in a way that controverts that acquittal. Second, an acquittal does not automatically bar the underlying conduct from being tendered in a later trial, but careful attention must be paid to the basis on which it is presented to the jury. Third, where the acquittal rested on a failure to rebut doli incapax (rather than disbelief that the conduct occurred), presenting that conduct as tendency evidence required the prosecution to confront what probative work the evidence could actually do.

Basten JA held that the tendency evidence had little or no probative value under s 97 of the Evidence Act 1995 (NSW). The core difficulty was that the prior conduct occurred when DS was an 11-year-old who had not been proved to have the moral understanding necessary for criminal intent. There was no reliable basis from which a jury could infer that such early conduct, absent proven wrongful intent, demonstrated a tendency to sexually offend years later as an adult. The risk of prejudice substantially outweighed any probative value, failing the test in s 101(2). Additionally, Basten JA rejected the prosecution's argument that the evidence could be limited to proving the actus reus only. In sexual offence cases where identity or the occurrence of the act is contested, evidence of other consensual or uncharged conduct does not straightforwardly make the physical act of later alleged offending more probable.

On the jury direction ground, Wilson J found the trial judge's directions were inadequate in that they permitted the jury to use the tendency evidence in a manner that effectively controverted the earlier acquittal. The court noted the acquittal had rested entirely on the doli incapax presumption, meaning the prior conduct could only legitimately inform the jury about the physical act, not DS's state of mind. The directions failed to draw that line clearly enough. As the tendency evidence was wrongly admitted or wrongly left to the jury, the conviction could not stand.

Orders Made

  • Appeal against conviction upheld
  • Conviction and sentence quashed
  • Matter remitted to the District Court

Key Takeaways

  • Where a prior acquittal rested on the failure to rebut doli incapax rather than a finding that the conduct did not occur, subsequent use of that conduct as tendency evidence remains possible in principle, but the prosecution faces significant constraints on the basis upon which it may present that evidence to a jury.
  • Under ss 97 and 101 of the Evidence Act 1995 (NSW), tendency evidence must carry significant probative value, and that value must substantially outweigh prejudicial effect. The Court of Criminal Appeal found those thresholds were not met where the prior conduct occurred during childhood without proved wrongful intent, and where a jury would have no reliable experiential basis for drawing the relevant inference.
  • A prosecution argument that tendency evidence goes only to the actus reus and not the accused's mental state does not automatically resolve the problem of controvening an acquittal. Basten JA questioned whether the physical and mental elements of an offence can be so cleanly separated for these purposes in all circumstances.
  • The principle from The Queen v Carroll (2002) 213 CLR 635 that a prosecutor cannot use prior acquitted conduct in a way that controverts the acquittal remains central to the admissibility analysis, and its scope depends closely on the identified basis of the original acquittal.
  • Quashing a conviction does not end proceedings. The Court remitted the matter to the District Court, leaving the question of retrial to the prosecutor.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D, 78H
- Evidence Act 1995 (NSW), ss 97, 99, 101, 137

Cases:
- The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55
- RP v The Queen (2016) 259 CLR 641; [2016] HCA 53
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Regina v Z [2000] 2 AC 483
- Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Saraswati v The Queen (1990-1991) 172 CLR 1; [1991] HCA 21
- BC v R [2015] NSWCCA 327
- Gilham v R [2012] NSWCCA 131; 178 A Crim R 72
- Paul Campbell v R [2018] NSWCCA 87