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Court of Criminal Appeal 25 September 2019

TB v R

[2019] NSWCCA 224

Sexual offences

Citation: TB v R [2019] NSWCCA 224
Court: Court of Criminal Appeal, NSW
Date: 25 September 2019
Judge(s): White JA (lead judgment); Harrison J; R A Hulme J

Background

The applicant was convicted in the District Court on three counts arising from complaints by two complainants: his cousin (ST) and his stepdaughter (AM). The offences involved digital penetration and an act of indecent assault. The conduct relating to ST was alleged to have occurred in 1997 or 1998, when she was aged 12 or 13 and visiting the applicant's family home. The conduct relating to AM was alleged to have occurred in 2011, when she was aged 10 or 11 and living in the applicant's household.

The applicant was acquitted on two further counts relating to AM, which concerned an occasion on which she was shown a pornographic video and her hand was placed on the applicant's penis. He denied all of the conduct alleged by both complainants.

At trial, the Crown had also sought to lead tendency evidence from a third complainant, MH (the applicant's younger sister), concerning alleged offending in the early 1990s. The trial judge excluded that evidence on the basis that it lacked sufficient probative value and was significantly prejudicial, ordering a separate trial on those counts. The evidence of ST and AM was, however, treated as mutually admissible tendency evidence on the counts concerning each other.

  • Whether the jury's verdicts were unreasonable, given conflicts in evidence about peripheral matters and given that the jury acquitted on some counts while convicting on others
  • Whether the tendency evidence (ST's evidence used in relation to the AM counts, and vice versa) had sufficient probative value under s 97 of the Evidence Act 1995 (NSW), particularly given the approximately 13-year gap between the alleged incidents
  • Whether tendency evidence admitted in relation to the AM counts could be used retrospectively to support the ST count, which predated the AM conduct
  • Whether the trial miscarried because cross-examination of AM did not comply with s 44(3) of the Evidence Act 1995 (NSW)
  • Whether the primary judge gave an inadequate direction under R v Markuleski (2001) 52 NSWLR 82 regarding the tendency evidence
  • Whether the sentence was manifestly excessive, including whether the sentencing judge overstated the objective seriousness of the offending

Decision

Unreasonable verdict. White JA applied the test in M v The Queen (1994) 181 CLR 487 and SKA v The Queen (2011) 243 CLR 400, asking whether it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt of guilt. His Honour found that the conflicts identified by the applicant went to peripheral matters and did not undermine the core allegations. The acquittals on counts 3 and 4 were explicable on the basis that the jury may have had a reasonable doubt as to the precise circumstances of those events, and did not render the convictions on counts 2 and 5 unreasonable. R A Hulme J expressly agreed on this point.

Tendency evidence. The trial judge had admitted the evidence of ST and AM as mutually supportive tendency evidence, identifying common features: the applicant was an adult; the acts were opportunistic; both complainants were female children in a specific age range; and both were related to the applicant and present in his home. White JA accepted that a large temporal gap between alleged tendency acts reduces their probative value, but held that the gap here did not reduce it below the threshold required by s 97. The relevant question was whether the evidence had significant probative value, assessed in light of the Hughes v The Queen (2017) 92 ALJR 52 framework. His Honour was satisfied that threshold was met.

Retrospective use of tendency evidence. The applicant argued that AM's evidence (occurring in 2011) could not logically support a finding about events in 1997 or 1998. White JA acknowledged the theoretical complexity but found no error in the way the tendency evidence was used at trial, noting that evidence of a tendency to engage in particular conduct is capable of supporting an inference about prior conduct as well as subsequent conduct, provided the jury is properly directed.

Markuleski direction and s 44(3). White JA found no material inadequacy in the trial judge's tendency direction. On the s 44(3) question (which requires that a witness be given the opportunity to give evidence in a hearing before a party cross-examines them on a prior inconsistent statement), the Court found that any non-compliance did not cause a substantial miscarriage of justice, and the trial did not miscarry as a result.

Sentence. The applicant submitted that the sentencing judge's assessment of objective seriousness was excessive and that insufficient concurrency was applied to the AM counts. White JA noted that assessing objective seriousness is a broadly based evaluative exercise entrusted to the sentencing judge. No sentencing pattern data was placed before the court to support the assertion that 2011 patterns differed materially from those applicable at the 2017 sentencing. The offences against AM were discrete episodes justifying some accumulation of sentences. The sentence was found to be within the proper bounds of the sentencing discretion and was not manifestly excessive.

Orders Made

  • Leave to appeal against conviction and sentence granted
  • Appeal dismissed

Key Takeaways

  • A large temporal gap between alleged tendency acts reduces their probative value but does not automatically disqualify the evidence; the court assessed whether significant probative value remained under s 97 of the Evidence Act 1995 (NSW), taking into account the nature and strength of the common features across the alleged conduct.
  • Tendency evidence is capable, in appropriate circumstances, of supporting an inference about prior conduct, not only future conduct, though the logical force of retrospective use requires careful consideration.
  • Mixed verdicts do not automatically render remaining convictions unreasonable. Where acquittals on some counts are explicable by reference to discrete circumstances, the Court of Criminal Appeal confirmed they do not necessarily undermine convictions on other counts arising from the same trial.
  • Assessing the objective seriousness of an offence is described in the case law as "quintessentially" a matter for the sentencing judge, involving broadly based evaluation. In dismissing the sentence appeal, the Court found no basis to interfere with that assessment where no error of principle was identified and no sentencing pattern material was provided to support the ground.
  • Non-compliance with s 44(3) of the Evidence Act 1995 (NSW) in cross-examination does not automatically result in a miscarriage of justice; the question is whether the non-compliance caused a substantial miscarriage of justice on the facts of the particular trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C, 61M, 61O
- Evidence Act 1995 (NSW), ss 44, 69, 97
- Criminal Appeal Act 1912 (NSW), s 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A

Cases
- M v The Queen (1994) 181 CLR 487
- SKA v The Queen (2011) 243 CLR 400
- Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52
- The Queen v Baden-Clay (2016) 258 CLR 308
- Nguyen v R (2016) 256 CLR 656
- R v Markuleski (2001) 52 NSWLR 82
- R v Ford [2009] NSWCCA 306
- R v SK [2011] NSWCCA 292
- R v JJ [2019] NSWCCA 148
- RH v R [2014] NSWCCA 71
- Roos v R [2019] NSWCCA 67
- Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222
- Mulato v R [2006] NSWCCA 282
- R v Tillott (1995) 38 NSWLR 1
- Velkoski v The Queen (2014) 45 VR 680