Mura v R

Citation: Mura v R [2019] NSWCCA 30
Court: Court of Criminal Appeal
Date: 20 February 2019
Judge(s): Hoeben CJ at CL, Schmidt J, Adamson J

Background

The appellant was convicted in the District Court of three offences of participating, as a client, in an act of child prostitution with children under 18 years, and two offences of possessing child abuse material. He did not contest that the two young women had been provided to him for sexual services, but argued he honestly and reasonably believed each was at least 18 years old. He also did not contest that child abuse material depicting girls aged 6 to 15 was found on computers in his home, but denied placing the material there.

The Crown relied on tendency evidence at trial. The defence, in turn, sought to rely on its own tendency evidence to rebut the Crown's case. The appellant gave evidence that on one occasion he had refused to drive away with a 12-year-old prostitute sent to him by the sisters who ran the business, directing her to get out of his car because she appeared too young. He argued this conduct demonstrated he had no tendency to engage in sex with underage girls.

The critical issue on appeal was whether the trial judge's direction to the jury on the use of that defence tendency evidence was correct.

Legal Issues

• Whether the trial judge erred by directing the jury that the appellant's tendency evidence could only be used if the jury was satisfied it was "likely" that the relevant events had occurred
• Whether that error occasioned a substantial miscarriage of justice, such that the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) did not apply
• Whether leave should be granted under rule 4 of the Criminal Appeal Rules to raise a ground not taken at trial

Decision

The erroneous direction on tendency evidence

The trial judge directed the jury that before it could use the appellant's tendency evidence in his favour, it needed to be satisfied that what occurred in the car was "likely." Both the Crown and the appellant accepted on appeal that this direction was wrong. The appellant's tendency evidence was not an indispensable intermediate fact requiring proof to any particular standard, and the appellant bore no onus of proof on any issue in the trial (at [18]).

Application of the proviso

The sole contested question was whether the proviso applied, that is, whether no substantial miscarriage of justice had actually occurred despite the error. The Court distinguished this case from the earlier decision in Restricted Judgment [2018] NSWCCA 246, where a similar error was found to have had no conceivable effect because it was inconceivable the jury would have rejected the tendency evidence. Here, the only evidence of what happened in the car came from the appellant himself in largely self-serving testimony, and the Court could not infer that the jury would have accepted his account as "likely" on the balance of probabilities (at [27]-[28]).

The Court noted that the fact the Crown did not challenge the appellant's account in cross-examination was a forensic circumstance whose significance was likely to be appreciated only by lawyers familiar with the rule in Browne v Dunn, and no assumption could be made that the jury understood its implications (at [27]). Because the case turned on credibility and the erroneous direction may have prevented the jury from giving effect to the defence tendency evidence across all five counts, the Court was not in a position to assess whether guilt would have been proved to the criminal standard but for the error (at [28]). The proviso therefore did not apply.

Leave under rule 4

The Court granted leave under rule 4 of the Criminal Appeal Rules to raise the ground despite it not having been taken at trial. Although defence counsel contributed to the erroneous direction, the Crown also bore an obligation to assist the trial judge in correctly applying fundamental principles of criminal procedure, including those governing onus of proof and the use of relevant evidence (at [30]).

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 aggregate sentence set aside
• Re-trial ordered
• Matter listed for mention before the District Court on 1 March 2019 at 9.30 am

Key Takeaways

• Defence tendency evidence adduced to rebut Crown tendency evidence is not an indispensable intermediate fact and therefore need not be proved to any particular standard before the jury may use it (at [18]).
• A misdirection that imposes a "likely" or balance of probabilities threshold on defence tendency evidence creates a material misapprehension in the jury's mind as to how that evidence may be used, and cannot be dismissed as harmless where the relevant evidence depends on the accused's own credibility (at [27]-[28]).
• The Court of Criminal Appeal distinguished the earlier Restricted Judgment decision: that case involved overwhelming independent evidence supporting the tendency finding, whereas here the only evidence came from the appellant's own account, making it impossible to infer the jury would have cleared the wrongly-imposed threshold (at [28]).
• Where a case turns on credibility and a direction error may have prevented the jury from using potentially exculpatory evidence on all counts, the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) will not save the convictions (at [28]-[29]).
• Both defence counsel and the Crown bear obligations to assist the trial judge in correctly directing the jury on fundamental principles including onus of proof; an error arising from a failure on both sides remains one that must be corrected on appeal (at [30]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6 Criminal Appeal Rules, 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