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Court of Criminal Appeal 24 July 2019

CA v R

[2019] NSWCCA 166

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTIONS SEXUAL ASSAULT MULTIPLE COMPLAINANTS TENDENCY EVIDENCE

Citation: CA v R [2019] NSWCCA 166
Court: Court of Criminal Appeal, New South Wales
Date: 24 July 2019
Judge(s): Price J; Adamson J; Hidden AJ

Background

The appellant stood trial in the District Court on 35 counts of sexual offences alleged to have occurred between 1982 and 1986 against five male complainants, all minors at the time. Two groups of complainants were central to the case: two cousins (JF and SF) who gave evidence of offending at a church and oval in the Waverley area, and three boys (the "club complainants") who gave evidence of offending at a surf life saving club.

The Crown case was that the same man, known to the complainants as "Charlie," committed all the offences. The appellant denied any sexual impropriety and, in relation to JF and SF specifically, denied any contact with them at all. Identity was therefore a live issue in respect of the church and oval counts.

Following trial, the jury returned convictions on 31 counts. The appellant appealed on several grounds, including that the trial judge erred in refusing to sever the two sets of counts, misdirected the jury on tendency evidence, wrongly admitted photo identification evidence, failed to properly discharge the jury, and erred in moving to a majority verdict.

  • Whether the trial judge erred in refusing to sever counts 1 to 20 (the JF and SF allegations) from counts 21 to 35 (the club complainants' allegations), having failed to properly assess whether the tendency evidence had significant probative value and conduct the balancing exercise under s 101(2) of the Evidence Act 1995 (NSW)
  • Whether the trial judge's directions to the jury on tendency evidence were adequate, specifically whether the jury was properly directed that it must be satisfied beyond reasonable doubt that the appellant was the offender in relation to one group of counts before using that evidence as tendency evidence in relation to the other group
  • Whether the photo identification procedure complied with s 115 of the Evidence Act 1995 (NSW), and whether the trial judge should have excluded it under s 137
  • Whether the trial judge erred in declining to discharge the jury under s 53C(1)(a) of the Jury Act 1977 (NSW), or pursuant to the common law discretion
  • Whether the trial judge erred in moving to a majority verdict without first satisfying the requirements of s 55F(2)(a) of the Jury Act 1977 (NSW) and giving a direction in accordance with Black v The Queen (1993) 179 CLR 44

Decision

Ground 1 and 1A: Severance and tendency evidence directions

The Court allowed the appeal on the combined effect of grounds 1 and 1A. The core problem was that identity was genuinely in issue for the JF and SF counts, yet the tendency evidence from the club complainants was used in a way that created a substantial risk the jury would treat it as establishing identity rather than as evidence of a tendency to engage in particular sexual conduct. The Court accepted that the trial judge failed to adequately direct the jury that it needed to be satisfied beyond reasonable doubt that the appellant was the offender in relation to one group before using that evidence as tendency evidence concerning the other group.

Compounding the problem was the trial judge's use of a "cookie jar" analogy in the summing-up, which all three judges identified as an apt illustration of exactly the forbidden reasoning the jury was told to avoid. Although the judge had given extensive directions on tendency evidence, the analogy risked inviting the very impermissible coincidence reasoning the directions were meant to prevent. The Court found that no subsequent direction adequately corrected this error.

Ground 2: Photo identification

Because the appeal was allowed and a re-trial ordered on the JF and SF counts, the Court addressed the photo board issue given its relevance to that re-trial. The argument centred on whether the photo array, which depicted each subject front-on and in profile in the style of police "mug shots," suggested the persons depicted were in police custody, thereby engaging the exclusionary provision in s 115(2) of the Evidence Act. The trial judge had acknowledged the "mug shot" appearance but ultimately admitted the evidence. The Court examined this issue in detail, though the principal judgment's reasoning on the s 115 and s 137 questions is contained in the sections authored by Price J and Hidden AJ.

Grounds 3 and related grounds

The Court did not find error in the trial judge's handling of the jury discharge application or the decision to move to a majority verdict. In particular, the Court was satisfied that the requirements for a majority verdict direction had been met in the circumstances and that it was open to the trial judge to conclude the time had come to give that direction. These grounds were not made out.

Orders Made

  • Leave granted to appeal under r 4 of the Criminal Appeal Rules (NSW) in respect of ground 1A
  • Appeal allowed
  • Convictions and sentence quashed
  • Re-trial ordered, subject to the severance order below
  • The appellant to be tried separately on counts 1 to 20 (JF and SF) from counts 21, 22, 23, 26, 28, 29, 30, 32, 33, 34 and 35 (club complainants)
  • Matter remitted to the District Court at Sydney for mention on 2 August 2019

Key Takeaways

  • Where identity is a live issue at trial, a tendency evidence direction must make clear to the jury that it must first be satisfied beyond reasonable doubt that the accused was the perpetrator of the acts giving rise to the tendency before that evidence can be used in relation to other counts.
  • A trial judge's use of an illustrative analogy in summing-up can itself create appealable error if the analogy risks encouraging the very reasoning the directions prohibit, even where detailed written directions have been given.
  • Under s 101(2) of the Evidence Act 1995 (NSW), the balancing exercise requires close attention to whether the probative value of tendency evidence substantially outweighs the danger of unfair prejudice, including the distinct danger of impermissible identity reasoning where identification is genuinely disputed.
  • The Court of Criminal Appeal confirmed that failure by trial counsel to seek a re-direction does not automatically preclude appellate relief under r 4 of the Criminal Appeal Rules where potential injustice is established.
  • Refusing to discharge a jury and moving to a majority verdict are decisions attracting considerable deference; both grounds failed here because the Court was satisfied the procedural requirements had been met and the decisions were open to the trial judge on the circumstances presented.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61D, 61E, 61F, 78K
- Evidence Act 1995 (NSW): ss 97, 98, 101, 115, 135, 137, 138
- Jury Act 1977 (NSW): ss 53A, 53B, 53C, 55F
- Criminal Appeal Rules (NSW): r 4

Cases
- Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52
- The Queen v Bauer [2018] HCA 40; (2018) 92 ALJR 846
- McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
- Black v The Queen (1993) 179 CLR 44
- DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
- Sokolowskyj v R [2014] NSWCCA 55; (2014) 239 A Crim R 528
- Selby v R [2017] NSWCCA 40
- BC v R [2019] NSWCCA 111
- Pace and Collins v The Queen [2014] VSCA 317; (2014) 247 A Crim R 1
- R v Batty (NSWCCA, unreported, 6 August 1997)
- Crofts v The Queen (1996) 186 CLR 427
- The Queen v Glennon (1992) 173 CLR 592
- Wu v The Queen (1999) 199 CLR 99
- Hanna v R (2008