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Court of Criminal Appeal 11 May 2018

GE v R

[2018] NSWCCA 91

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION

Citation: GE v R [2018] NSWCCA 91
Court: NSW Court of Criminal Appeal
Date: 11 May 2018
Judge(s): Simpson AJA; Fullerton J; McCallum J

Background

The applicant was tried in the District Court on ten counts of sexual misconduct against his adopted daughter. The jury acquitted him on several counts, was unable to reach verdicts on three others, and returned guilty verdicts on two: one count of aggravated sexual intercourse with a child aged between 10 and 14 years (oral intercourse), and one count of aggravated indecent assault of a child under 16 years (squeezing of the complainant's buttocks). He was sentenced to an effective term of 5 years and 3 months imprisonment.

A central feature of the Crown case was evidence from the complainant's mother that the applicant had made admissions to her on separate occasions. Two of these were general admissions, not tied to any particular act or count on the indictment. A third referred to three specific acts, only one of which corresponded to a charged offence (a count on which the applicant was ultimately acquitted). The Crown led this material as evidence of admissions rather than as tendency evidence.

The applicant filed a notice of appeal against conviction, out of time, on a single ground: that the trial judge failed to give the jury adequate directions on how to use the admissions evidence. Because no complaint was raised at trial, leave was required under r 4 of the Criminal Appeal Rules.

  • Whether the trial judge's directions to the jury adequately explained the permissible uses of the general admissions, the specific admissions of uncharged acts, and the distinction between them
  • Whether the absence of an additional direction addressing the risk of impermissible tendency reasoning from the general admissions constituted a failure that warranted leave under r 4 of the Criminal Appeal Rules
  • Whether any inadequacy in the directions gave rise to a substantial miscarriage of justice sufficient to warrant a grant of leave and allow the appeal

Decision

The Court of Criminal Appeal refused leave to appeal and dismissed the application. All three judges agreed, with Fullerton J delivering the principal judgment and McCallum J adding concurring reasons.

Fullerton J found that the trial judge's directions were adequate and consistent with the Court's earlier decision in ARS v R [2011] NSWCCA 266. The judge had correctly directed the jury that the general admissions could be used to support a finding that the charged conduct occurred, on the basis that those admissions, taken together with the other evidence, were capable of relating to or encompassing the charged acts. The judge had also given an "anti-tendency" direction, which addressed the risk that the jury might use the specific admission of uncharged conduct as tendency reasoning.

The applicant's core contention was that the general admissions required a separate, additional direction warning the jury against tendency reasoning in relation to those admissions. Fullerton J rejected this. The admissibility and use of those general admissions was founded on the principle from Rolfe v R [2007] NSWCCA 155 that a general admission, taken with other evidence, may be used to support a finding that charged conduct occurred. The directions given accurately reflected that basis, and no separate anti-tendency warning was required in the circumstances.

McCallum J agreed that the appeal should be dismissed and added observations about the proper framework for admissions of this kind. Her Honour noted that Rolfe does not exclude the possibility that a general admission of uncharged conduct may also be admissible as tendency evidence or context evidence, subject to the usual constraints. Because no such admissibility issue arose here, the existing directions were sufficient.

Orders Made

• Refuse leave and dismiss the appeal

Key Takeaways

  • Under the principle confirmed in Rolfe v R, a general admission of sexual conduct that does not refer to any particular act may nonetheless be used by a jury as evidence that charged conduct occurred, provided the admission is capable, when taken with other evidence, of relating to or encompassing that charged conduct.

  • A separate anti-tendency direction is not invariably required in relation to general admissions of uncharged sexual conduct. Where such admissions are admitted and directed upon as going to proof of the charged conduct (rather than as tendency or context evidence), the ARS v R framework governs the appropriate direction.

  • The Court of Criminal Appeal confirmed that an anti-tendency direction remains necessary where specific admissions of uncharged conduct are placed before the jury, to guard against misuse of that material as impermissible tendency reasoning.

  • No error was established in the trial judge's directions, despite the absence of a contemporaneous objection. The single ground of appeal did not demonstrate any substantial miscarriage of justice sufficient to warrant a grant of leave under r 4 of the Criminal Appeal Rules.

  • The decision reinforces that the relevance and permissible use of admissions evidence in child sexual assault trials will vary depending on whether the admission is general or specific, and whether it refers to charged or uncharged conduct. Each category requires careful attention to the applicable direction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66C(2)
- Criminal Appeal Rules (NSW), r 4

Cases
- ARS v R [2011] NSWCCA 266
- Dent v R [2017] NSWCCA 166
- Greenhalgh v R [2017] NSWCCA 94
- Rolfe v R [2007] NSWCCA 155; 173 A Crim R 168