Citation: Mura v R [2019] NSWCCA 30
Court: Court of Criminal Appeal, NSW
Date: 20 February 2019
Judge(s): Hoeben CJ at CL, Schmidt J, Adamson J
Background
The appellant was convicted on five counts: three counts of participating, as a client, in acts of child prostitution with girls aged 15 and 16, and two counts of possessing child abuse material found on computers at his home. On the prostitution counts, the appellant did not deny the sexual activity occurred but argued he honestly and reasonably believed each girl was at least 18 years old. On the computer counts, he denied placing the material there and raised the possibility that his late father, who had access to the unprotected computers, may have been responsible.
A significant piece of the defence case was the appellant's account of a separate incident involving a 12-year-old girl, B, who had been sent to him by the same operators of the prostitution network. The appellant said he refused to proceed when he saw how young she was and directed her to leave his car. He had reported the incident to police, which ultimately exposed the prostitution network and led to his own prosecution.
The Crown served tendency evidence asserting the appellant had a sexual interest in young girls. The defence sought to use the B incident as rebutting tendency evidence, arguing it demonstrated the opposite tendency: that the appellant was not sexually interested in underage girls.
Legal Issues
- Whether the trial judge misdirected the jury by requiring the defence tendency evidence to be proved to a standard of "likely" before the jury could use it to rebut the Crown's tendency evidence.
- Whether any such misdirection caused a substantial miscarriage of justice warranting the quashing of convictions.
- Whether leave to appeal was required under rule 4 of the Criminal Appeal Rules, and if so, whether it should be granted.
Decision
The trial judge directed the jury that, unlike the Crown's tendency evidence (which required proof beyond reasonable doubt), the defence tendency evidence only needed to satisfy the jury that the events were "likely." Adamson J held this was a misdirection. No onus rests on an accused to prove anything to any standard of proof, whether balance of probabilities or likelihood. The correct position is that a jury may act on any evidence in the defence case, including tendency evidence, provided it is sufficient to raise a reasonable doubt.
The Court also noted that the trial judge's direction on the Crown's tendency evidence was actually more favourable to the appellant than it needed to be, since the Crown is only required to prove beyond reasonable doubt the elements of the offence and any indispensable intermediate steps toward guilt, not every piece of tendency evidence. However, no ground of appeal turned on that point.
The critical question was whether the error caused a substantial miscarriage of justice. Adamson J found it was impossible to conclude the jury would necessarily have accepted the B incident as "likely" and therefore impossible to rule out that the misdirection had a practical effect. This was a case turning substantially on credibility, making it inappropriate to apply the proviso (which allows convictions to stand despite error where guilt is otherwise clear). The miscarriage could not be dismissed as insignificant.
Because the rebutting tendency evidence was relevant to all five counts, Adamson J held all five convictions should be quashed and a new trial ordered. The sentence appeal became unnecessary to address once the convictions were set aside.
Orders Made
- Leave granted to the appellant under rule 4 of the Criminal Appeal Rules to raise the ground of appeal against conviction.
- Appeal allowed.
- Convictions on counts 1, 2, 3, 5, and 6 quashed, and the aggregate sentence set aside.
- New trial ordered.
- Matter listed for mention before the District Court on 1 March 2019 at 9:30 am.
Key Takeaways
- A trial judge must not impose any burden of proof, whether expressed as "likely," "balance of probabilities," or any other standard, on an accused when directing a jury about defence tendency evidence.
- Where an error in jury directions relates to evidence bearing on all counts in a trial, the Court of Criminal Appeal may quash all convictions rather than only those most directly affected.
- In dismissing the application of the proviso under s 6 of the Criminal Appeal Act 1912, the court confirmed that the proviso is not available where the trial turned substantially on credibility and no conclusion about guilt can be drawn independently of the erroneous direction.
- Leave under rule 4 of the Criminal Appeal Rules was granted despite trial counsel having contributed to the misdirection, because the Crown also bore an obligation to assist the trial judge in applying fundamental criminal trial principles, including those relating to onus of proof.
- Under s 97 of the Evidence Act 1995 (NSW), tendency evidence adduced by the defence to rebut Crown tendency evidence is subject to the same general principle: the jury may consider it if it is capable of raising reasonable doubt, without the defence needing to establish it to any positive standard.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), s 97
Cases:
- Browne v Dunn (1893) 6 R 67
- Kalbasi v Western Australia [2018] HCA 7; (2018) 92 ALJR 305
- Restricted Judgment [2018] NSWCCA 246
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- The Queen v Bauer [2018] HCA 40
- The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16