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Court of Criminal Appeal 23 June 2020

R v LEH

[2020] NSWCCA 135

Sexual offences
CRIME APPEALS INTERLOCUTORY APPEAL MULTIPLE CHARGES OF SEXUAL OFFENCES TEXT CALL MADE BY COMPLAINANT’S MOTHER

Citation: LEH v R [2020] NSWCCA 135
Court: Court of Criminal Appeal
Date: 23 June 2020
Judges: McCallum JA (principal judgment); Johnson J (agreeing); Adamson J (agreeing in orders and substantially in reasons)

Background

The respondent faced a joint indictment of 20 counts of sexual offences alleged to have been committed in 2011 against a 16-year-old complainant with a neurodevelopmental disorder. The offences included aggravated sexual assault and aggravated indecent assault. A number of counts alleged that the respondent's co-accused, his wife (NH), was the principal offender and that the respondent aided and abetted her conduct.

A pretext call is a telephone call made by a third party, with the knowledge of investigators, designed to elicit admissions from a suspect. Here, the complainant's mother (AD) made such a call to the respondent on 15 October 2015. During the call, the respondent made statements that the prosecution characterised as admissions: specifically, that he was present when NH engaged in sexual activity with the complainant, though he accompanied those admissions with an exculpatory explanation.

Before the retrial, the trial judge (Hunt DCJ in the District Court) ruled that two portions of the pretext call were inadmissible, excluding them under section 137 of the Evidence Act 1995 (NSW), which requires a court to exclude prosecution evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. The Director of Public Prosecutions appealed that ruling to the Court of Criminal Appeal under section 5F(3A) of the Criminal Appeal Act 1912 (NSW).

  • Whether the DPP's interlocutory appeal was competent, specifically whether the trial judge's ruling "substantially weakened" the prosecution's case as required by section 5F(3A) of the Criminal Appeal Act 1912 (NSW).
  • Whether the trial judge erred in applying section 137 of the Evidence Act 1995 (NSW) by applying a wrong principle or mistaking the facts, constituting error in the House v The King sense.
  • Whether it was necessary to establish House v The King error in an appeal of this kind, or whether the Court of Criminal Appeal could determine the section 137 question afresh.
  • Whether, if the appeal succeeded, the Court should itself rule the portions admissible or instead set aside the ruling and remit the question to the trial judge.

Decision

McCallum JA, with whom Johnson J and Adamson J agreed, allowed the appeal. Her Honour first addressed whether the ruling substantially weakened the prosecution's case, concluding that it did. Without the respondent's admissions, the case on counts 16 to 20 (the aiding and abetting counts) reduced to a "word against word" contest between the complainant and the respondent. That characterisation permits broader credibility attacks on the complainant and may enliven obligations to warn the jury about uncorroborated evidence, citing R v Markuleski.

The admissions were characterised as powerful evidence even though they addressed only one element of the accessorial liability offences, namely the respondent's presence. McCallum JA also noted that the phrase "every time it happened" in the excluded portions supported the prosecution's case that sexual activity between NH and the complainant occurred on more than one occasion. The admissions would also allow the jury to assess the respondent's credibility against his police interview, in which he denied ever witnessing any sexual activity between NH and the complainant.

The Director submitted that House v The King error was not required to be shown, relying on the High Court's statement in The Queen v Dennis Bauer that questions of admissibility of this kind have only one correct answer. The Court did not resolve that debate, because it was satisfied that House v The King error was in any event established on the facts.

On the question of relief, the Court adopted the approach approved in R v Dolding and confined its orders to setting aside the ruling, rather than itself determining admissibility afresh. The Court also declined to consider whether section 90 of the Evidence Act (a separate discretionary power to exclude admissions) might have supported exclusion, because that argument had not been raised before the trial judge and the discretion properly reposes in the trial judge at first instance.

Orders Made

  • The appeal was allowed.
  • The primary judge's ruling excluding the two disputed portions of the pretext call between the respondent and AD on 15 October 2015 (from page 37 to page 38, and page 41) was set aside.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a DPP interlocutory appeal under section 5F(3A) of the Criminal Appeal Act 1912 (NSW) is only competent if the ruling eliminates or substantially weakens the prosecution's case. Here, exclusion of admissions going to presence reduced a multi-count sexual assault case to a bare credibility contest, satisfying that threshold.
  • A limited or partial admission, even one accompanied by an exculpatory explanation, can constitute powerful prosecution evidence capable of substantially strengthening a case, particularly where it contradicts the accused's subsequent statements to police.
  • Where a prosecution case becomes a "word against word" contest following exclusion of evidence, that characterisation carries downstream procedural consequences, including the potential for broader credibility attacks on the complainant and possible Markuleski-style warnings to the jury.
  • The Court declined to resolve whether House v The King error is required in a DPP admissibility appeal, leaving that question open. The Director's alternative submission that such error was established in any event meant the Court did not need to decide the point.
  • Following R v Dolding, when a DPP interlocutory admissibility appeal succeeds, the appropriate relief is to set aside the trial judge's ruling rather than for the appellate court to substitute its own admissibility determination. Arguments not raised before the trial judge, such as the section 90 discretion to exclude admissions, remain for the trial judge to consider.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Evidence Act 1995 (NSW), ss 55, 81(1), 81(2), 90, 137
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 66F(3), 578A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)(a)

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846
- Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 94 ALJR 168
- R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238
- Keen v R [2020] NSWCCA 58