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Court of Criminal Appeal 24 June 2020

FB v R

[2020] NSWCCA 137

Sexual offencesAssault & violence
CRIME APPEAL CONVICTION MISCARRIAGE OF JUSTICE EVIDENCE ACT 1995 (NSW), PT 3.8 CRIME APPEALS

Citation: FB v R [2020] NSWCCA 137
Court: Court of Criminal Appeal
Date: 24 June 2020
Judge(s): Basten JA; R A Hulme J; N Adams J

Background

A father was tried in the Sydney District Court on 13 counts of assault and acts of indecency against his daughter and son, alleged to have occurred between 2015 and 2016 during weekend visits. The jury convicted him on 11 counts and acquitted him on two. He was sentenced to an aggregate term of 4 years and 6 months' imprisonment.

The applicant called several character witnesses at trial. The Crown, in response, was permitted to lead evidence from the children's mother that the applicant had been physically violent towards her during the marriage. Separately, the children gave evidence of uncharged conduct admitted as tendency and context evidence. The applicant was released on bail after serving approximately 12 months of his sentence pending the appeal.

The appeal raised three grounds: that the prosecutor's closing address misused the rebuttal evidence; that the trial judge's directions on good character and rebuttal evidence were inadequate; and that the verdicts were unreasonable.

Legal Issues

  • Whether the Crown prosecutor's closing address impermissibly misused rebuttal evidence of bad character or undermined the good character evidence
  • Whether the trial judge was required to give directions more adequately summarising the good character evidence called at trial
  • Whether the trial judge was required to give an express anti-tendency direction concerning the mother's evidence of violence towards her, to prevent the jury using it as propensity evidence
  • Whether the verdicts of guilty on all 11 counts were unreasonable or unsupported by the evidence

Decision

Ground 1: Prosecutor's closing address

The applicant identified eight specific complaints about the Crown's closing address, including that it conflated tendency, context and rebuttal evidence in a "two faces" passage, and that it mischaracterised or undermined the character witnesses' evidence. The Court rejected all complaints (at [384]). The "two faces" passage was capable of being read as conflating the four distinct bodies of evidence, but no objection was taken at trial, defence counsel responded to it directly in their own address, and the trial judge had already confined the rebuttal evidence to the mother's account of violence towards herself (at [380]-[383]). The Crown's earlier references in the address to rebuttal evidence being confined to the mother's violence indicated no intention to extend it further (at [381]-[382]). Cross-examining character witnesses on the limits of their opportunity to observe the applicant, and referring to that in closing, was not impermissible (at [375]-[377]). The approach taken here was distinguishable from cases such as R v Bishop and Hogg v R where good character evidence had been impermissibly undermined (at [378]).

Ground 2(a): Anti-tendency direction regarding rebuttal evidence

The trial judge ruled that the only evidence permitted to rebut good character was the mother's account of the applicant's violence towards her (specifically, a "fridge incident"). No express direction was given telling the jury that this evidence could not be used to reason that the applicant had a tendency to be violent towards his children. The Court held there is no general obligation on a trial judge to give such a warning regardless of the particular circumstances (at [63]). Several factors pointed against a miscarriage. The rebuttal evidence (violence to the mother) had at best a fragile connection to the charged assaults on the children and no connection to the indecency counts (at [54]). The defence had deliberately introduced much of the bad character evidence in cross-examination of the mother to support its concoction case, and a further direction risked undermining that strategy and drawing attention to the prejudicial material (at [61]-[62]). The judge had given careful tendency, context and separate-consideration directions covering the proper use of the charged evidence (at [56]-[58], [400]). In combination, there was no real possibility the omission caused the jury to misuse the evidence and no real risk of lost acquittal (at [63]). The failure to give an anti-tendency direction does not inevitably produce a miscarriage; each trial turns on its own facts (at [403]).

Ground 2(b): Adequacy of summary of character evidence

No miscarriage arose from the trial judge's failure to expressly include, in the summary of good character evidence, observations made by Crown witnesses David Walker and Lorna Hankin who had also resided with the applicant. The judge summarised the evidence of all five defence character witnesses and gave appropriate directions on its use (at [34]-[37], [385]-[388]). There is no obligation on a trial judge to summarise every witness's evidence, and no request for further direction was made at trial (at [387]).

Ground 3: Unreasonable verdicts

R A Hulme J reviewed the whole of the evidence, including the children's accounts, the mother's evidence, the good character evidence and the defence case of concoction. The verdicts were not unreasonable. The children's accounts, assessed in the context of their ages, the frequency of the alleged conduct and the passage of time, carried the ring of truth, including child-like detail unlikely to feature in fabricated accounts (at [172]-[176], [236]-[237]). Apparent inconsistencies between the children's accounts were consistent with genuine, independent recollection of recurring conduct rather than collaboration (at [232], [105]). The acquittals on counts 2 and 4 were explicable on grounds that did not undermine the daughter's credit generally (at [162]-[165]). Conflicting evidence from the applicant's partner was considered but did not compel reasonable doubt (at [108], [203]). Upon full assessment of the evidence, the convictions were open to the jury (at [240]).

Orders Made

  • Leave to appeal against convictions granted to the extent necessary
  • Appeal dismissed
  • The applicant ordered to be returned to custody to serve the balance of the sentence imposed in the District Court

Key Takeaways

  • There is no universal rule in NSW requiring a trial judge to give an anti-tendency direction whenever bad character evidence is adduced to rebut good character evidence; whether the omission of such a direction produces a miscarriage depends on the particular circumstances of the trial, including the connection between the rebuttal evidence and the charged conduct, the directions actually given, and any forensic decisions made by defence counsel (at [63], [403]).

  • Section 110 of the Evidence Act 1995 (NSW) disapplies the tendency rule in relation to good character evidence and its rebuttal, which raises the question whether rebuttal evidence may be used for a tendency purpose without satisfying s 97; the Court of Criminal Appeal noted this construction has much to recommend it but declined to decide the point as it was not argued (at [21], [26]).

  • A prosecutor's closing address does not impermissibly undermine a good character direction merely by challenging the quality and scope of the character witnesses' observations, or by pointing out that witnesses were not present to observe the accused's behaviour in private settings, provided the address does not suggest that good character is irrelevant or of no weight in sexual assault cases (at [375]-[378]).

  • Where defence counsel makes a deliberate forensic decision not to seek a direction, an appellate court will not readily conclude that the absence of that direction produced a miscarriage of justice, particularly where the direction was not sought precisely because seeking it would have drawn attention to prejudicial evidence or undermined the defence strategy (at [406], [410]).

  • In assessing whether verdicts are unreasonable in child abuse cases involving multiple related counts over an extended period, apparent inconsistencies and gaps between complainants' accounts do not necessarily indicate fabrication; they may be explicable by habituation to frequent conduct, the age of the witnesses, and the time elapsed before interviews (at [103]-[105], [114]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61O, 61M, 412, 413
- Crimes Act 1958 (Vic), s 47A, 399
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 293A, 294; Sch 2, Pt 7
- Evidence Act 1995 (NSW), ss 9, 38, 55, 59, 76, 94, 95, 9 7, 98, 101A, 102, 109, 110, 136
- Criminal Appeal Rules (NSW), r 4

Cases
- ARS v R [2011] NSWCCA 266
- Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15
- Bishop v R (2013) 39 VR 642; [2013] VSCA 273
- Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14
- BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47
- CA v R [2017] NSWCCA 324
- Cabot (a pseudonym) v R [2018] NSWCCA 265
- Clegg v R [2017] NSWCCA 125
- D’Agostino v Regina [2019] NSWCCA 259
- Donnini v The Queen (1972) 128 CLR 114; [1972] HCA 71
- Eastman v The Queen (1997) 76 FCR 9; (1997) 158 ALR 107
- GAX v The Queen (2017) 91 ALJR 698; [2017] HCA 25
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Hamilton (a pseudonym) v R [2020] NSWCCA 80
- Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50
- Hogg v R [2019] NSWCCA 323
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IW v R [2019] NSWCCA 311
- James v The Queen (2014) 253 CLR 475; [2014] HCA 6
- JV v R [2017] NSWCCA 49
- KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
- L'Estrange v R [2011] NSWCCA 89
- Li, Wing Cheong v R [2010] NSWCCA 40
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- Oliverio v R (1993) 70 A Crim R 5; (1993) 61 SASR 354
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Pell v The Queen [2020] HCA 12
- Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
- R v El-Kheir [2004] NSWCCA 461
- R v Falealili [1996] 3 NZLR 664
- R v Hamilton (Court of Criminal Appeal, 6 July 1993, unreported)
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v Murphy (1985) 4 NSWLR 42
- R v Murray (1987) 11 NSWLR 12
- R v MWL (2002) 137 A Crim R 282; [2002] VSCA 221
- R v Oliverio (1993) 70 A Crim R 5; (1993) 61 SASR 354
- R v Rowton (1865) Le & Ca 520; (1865) 169 ER 1479
- R v Stalder [1981] 2 NSWLR 9
- Re OGD (No 2) 50 NSWLR 433; [2000] NSWCCA 404
- Simic v the Queen (1980) 144 CLR 319; [1980] HCA 25
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Vagg v R [2020] NSWCCA 134