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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, New South Wales
Date: 23 December 2019
Judge(s): Hoeben CJ at CL, Brereton JA, Cavanagh J

Background

The appellant was tried jointly with his brother-in-law (AS) and a friend (PV) on 35 counts of child sexual assault. There were two complainants: KF, the appellant's de facto step-daughter (aged between eight and eleven at the time of the offences), and JR, his biological daughter (aged between five and eight). The trial ran for 26 days before a jury in the District Court.

The jury convicted the appellant on four counts of aggravated sexual intercourse with KF (Counts 1, 3, 5 and 7), and on counts relating to joint offending with AS against KF and JR (Counts 25 to 30), and with PV against KF (Counts 31 and 34). During the joint trial, a statement of agreed facts was admitted as tendency evidence against PV only. That statement established that PV had committed, and been convicted of, multiple sexual offences against his daughter JV when she was aged around twelve.

The appellant's sole ground of appeal was that the joint trial with PV produced a substantial miscarriage of justice because evidence admitted against PV, particularly the agreed facts about his prior offending and his presence on the child protection register, was inadmissible against but highly prejudicial to the appellant.

Legal Issues

  • Whether the joint trial of the appellant with PV gave rise to a substantial miscarriage of justice, by reason of evidence admitted against PV that was inadmissible against the appellant being highly prejudicial to him.
  • Whether the trial judge's directions to the jury adequately addressed the risk of prejudice arising from that evidence.
  • Whether the absence of a specific direction about the appellant's knowledge of PV's status as a registered child sex offender contributed to any miscarriage.
  • Whether the absence of a direction that PV's tendency evidence could not be used to reason that PV had a tendency to engage in group sexual activity with another adult male caused identifiable prejudice to the appellant.

Decision

The single ground of appeal: miscarriage of justice from joint trial with PV

Brereton JA (with whom Hoeben CJ at CL and Cavanagh J agreed) restated the governing principles. As a general rule, persons charged with jointly committing an offence should be tried together, even though some prejudice to one accused is almost inevitable. Separate trials should be ordered only where there is a real risk, not a remote possibility, of positive injustice that cannot be cured by direction and that outweighs the public interest in efficient trial management (at [18]). On appeal, the question is not whether the original refusal to sever was erroneous at the time, but whether any real injustice actually occurred as a result of the joint trial (at [20]-[21]).

The Court examined the substance of the prejudicial evidence. The statement of agreed facts established PV's prior sexual offending against his daughter and his admitted sexual interest in pubescent girls. The separate evidence that the appellant knew PV was on the child protection register was elicited by PV's own counsel without objection and without any limitation being sought. Neither piece of evidence said anything directly adverse to the appellant. Any risk of prejudice lay only in the possibility that the jury would reason, impermissibly and illogically, that the appellant must be guilty of the charged offences because he associated with a convicted child sex offender (at [33], [67]).

The Court noted several features of the trial that mitigated any such risk. The evidence against PV formed a relatively small part of the overall case, while the evidence against the appellant, including DNA corroboration of KF's account (at [37]), was powerful and confronting (at [87]). The trial judge gave clear and repeated directions explaining that the agreed facts were admissible only against PV and played no part in the case against the appellant or AS, and that the case against each accused had to be considered separately (at [79]). The assumption that juries act in accordance with directions was supported here by the fact that the jury did not convict on Count 33 (the more serious charge of penile/anal intercourse by PV against KF in company with the appellant) but convicted only on the lesser alternative Count 34, suggesting they were not overborne by prejudice (at [67], [88]).

Regarding the absence of specific directions about the appellant's knowledge of PV's prior offending or about the group-activity tendency, the Court observed that no such directions were sought at trial, that the evidence was admitted without objection, and that the absence of any request was indicative that those matters were not considered significant at the time (at [84], [88]). The Court was not persuaded that any unacceptable risk of prejudice arose or that any real injustice was done to the appellant as a consequence of the joint trial with PV (at [89]).

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the test on appeal for miscarriage of justice arising from a joint trial is not whether the original refusal to sever was wrong, but whether real injustice actually resulted from the course the trial took (at [20]-[21]).

  • A separate trial should be ordered only where there is a real risk of positive injustice that cannot be cured by judicial direction, not merely because some prejudice to one accused is inevitable in a joint trial (at [18]).

  • Where the only identifiable risk of prejudice from jointly admitted evidence depends on a jury reasoning both impermissibly and irrationally (guilt by association), courts will not readily assume the jury reasoned in that way, particularly where the jury's verdict pattern is consistent with proper deliberation (at [33], [67], [87]).

  • The failure to seek a direction limiting prejudicial evidence, or to object to its admission, is a significant indicator that the evidence was not considered material at trial and weighs against a later finding of miscarriage on appeal (at [84], [88]).

  • Thorough and repeated judicial directions carefully separating the tendency evidence applicable to each accused, and emphasising the jury's obligation to consider each case solely on the evidence admissible against that accused, can adequately address the risk of prejudice arising from evidence admitted in a joint trial against one co-accused only (at [79], [80]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW) s 5F
- Criminal Procedure Act 1986 (NSW) s 29

Cases
- Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105
- Darby v The Queen (1982) 148 CLR 668; [1982] HCA 32
- Decision restricted [2019] NSWCCA 276
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Guimond v The Queen (1979) 44 CCC (2d) 481
- McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52
- R v Alexander and McKenzie (2002) 6 VR 53; [2002] VSCA 183
- R v Darby (1982) 148 CLR 668; [1982] HCA 32
- 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 Guldur (1986) 8 NSWLR 12; (1986) 25 A Crim R 271
- R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248
- R v Iaria [2004] VSC 110
- R v Jones and Waghorn (1991) 55 A Crim R 159
- R v Middis (Supreme Court of NSW, Hunt J, 27 March 1991, unreported)
- R v Oliver (1984) 57 ALR 543
- R v Patsalis & Spathis (1999) 107 A Crim R 432; [1999] NSWSC 649
- R v Pham [2004] NSWCCA 190
- Ross v R [2012] NSWCCA 207
- Trotter v R [2016] NSWCCA 57
- Webb v The Queen; Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30
- Young v The Queen [2015] VSCA 265