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Court of Criminal Appeal 23 December 2019

DR v R

[2019] NSWCCA 320

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION ACCUSED

Citation: DR v R [2019] NSWCCA 320
Court: Court of Criminal Appeal, NSW
Date: 23 December 2019
Judges: Hoeben CJ at CL, Brereton JA (principal judgment), Cavanagh J

Background

The appellant was convicted following a joint trial of multiple counts of sexual assault against two children: his de facto stepdaughter KF and his biological daughter JR. He was tried alongside his brother-in-law AS and his friend PV, with the three accused facing a total of 35 counts across shared and individual charges.

Before trial, the appellant sought a separate trial from PV on the basis that tendency evidence (evidence of a propensity to act in a particular way) would be admitted against PV concerning prior sexual offences against PV's own daughter. That application was refused. At trial, a statement of agreed facts was placed before the jury recording that PV had pleaded guilty in 2000 to sexual assault offences against his daughter and had served a prison sentence, and that in 2001 he had told a psychiatrist of a sexual interest in young girls. This material was explicitly admitted against PV only.

Separately, cross-examination by PV's counsel revealed that PV had been on the child protection register at the time of the alleged offences, and that the appellant knew this and knew PV had been imprisoned for sexual offences against his daughter. No objection was raised to this evidence at trial, no limiting direction was sought, and no specific jury direction addressing it was given.

  • Whether the joint trial with PV caused a substantial miscarriage of justice, given that highly prejudicial evidence was admitted against PV but was inadmissible against the appellant.
  • Whether the risk of the jury reasoning impermissibly from PV's prior convictions and the child protection register evidence to the appellant's guilt amounted to unacceptable collateral prejudice.
  • Whether the trial judge's directions adequately addressed and cured any risk of prejudice to the appellant from the evidence admitted solely against PV.

Decision

Brereton JA (with Hoeben CJ at CL and Cavanagh J agreeing) dismissed the appeal. The central question was whether any real injustice had been done to the appellant as a result of the joint trial. The Court held that the test is not simply whether inadmissible but prejudicial evidence was placed before the jury in a joint trial, but whether there was an unacceptable risk of prejudice that was not cured by judicial direction.

The Court found that the evidence admitted against PV alone played only a small part in a long and complex trial dominated by the evidence of the complainants KF and JR. That evidence did not reference the appellant, and any risk of prejudice would have required the jury to engage in illogical guilt-by-association reasoning. The case against the appellant was not significantly weaker or materially different from the case against PV, nor did the PV-specific evidence impermissibly bolster a weak case against the appellant.

Regarding the child protection register evidence, the Court noted that no objection had been taken at trial and no limiting direction had been sought. The absence of any objection was itself indicative that trial counsel did not regard it as a matter of significant concern. The trial judge had given clear directions that the agreed facts applied only to PV, that the Crown case against the appellant rested wholly on the complainants' evidence, and that the jury was to assess each accused separately and only on the evidence applicable to that accused.

The trial judge's directions, taken as a whole, were found to have adequately addressed the risk of prejudice. The Court was satisfied there was no real injustice to the appellant from the conduct of the joint trial, and the appeal was dismissed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Where a conviction is challenged on the ground of prejudice arising from a joint trial, the essential question is whether any real injustice was done to the accused, not merely whether some prejudicial evidence was admitted against a co-accused.
  • A risk of unfair prejudice from evidence admissible only against a co-accused arises where that evidence establishes bad character or bolsters an otherwise weak case against the other accused, and that risk is not cured by judicial direction.
  • The Court of Criminal Appeal confirmed that the relative size and prominence of the co-accused-specific evidence in the overall trial is a material consideration: evidence that forms only a minor part of a lengthy trial is less likely to give rise to unacceptable prejudice.
  • Absence of objection at trial and failure to seek a limiting direction are relevant indicators that evidence was not considered significant, and they inform the appellate assessment of whether prejudice was real and substantial.
  • Judicial directions instructing a jury to treat evidence as applicable only to a specific accused, to consider each accused separately, and to act only on the evidence relevant to each accused remain a primary means by which the risks of joint trials are managed and assessed on appeal.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 29
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 66A(1), 66A(2), 66C(2), 66EB(3)

Cases
- R v Alexander and McKenzie (2002) 6 VR 53; [2002] VSCA 183
- R v Middis (Supreme Court of NSW, Hunt J, 27 March 1991, unreported)
- Young v The Queen [2015] VSCA 265
- Decision restricted [2019] NSWCCA 276
- Darby v The Queen (1982) 148 CLR 668; [1982] HCA 32
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52
- Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105
- R v Pham [2004] NSWCCA 190
- R v Guldur (1986) 8 NSWLR 12
- R v Oliver (1984) 57 ALR 543
- Ross v R [2012] NSWCCA 207
- R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248
- R v Patsalis & Spathis (1999) 107 A Crim R 432; [1999] NSWSC 649
- R v Demirok [1976] VR 244
- R v Domican and Thurgar (1989) 43 A Crim R 24
- R v Farrell and Cotton (1990) 48 A Crim R 311
- R v Jones and Waghorn (1991) 55 A Crim R 159
- R v Iaria [2004] VSC 110
- Guimond v The Queen (1979) 44 CCC (2d) 481