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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: NSW Court of Criminal Appeal
Date: 24 June 2020
Judge(s): Basten JA; R A Hulme J; N Adams J

Background

The appellant was a father charged on an indictment containing multiple counts of assault and acts of indecency against his daughter and son. Following a trial in April 2018, he was convicted on eleven counts, including assault, acts of indecency, and acts of indecency in circumstances of aggravation. He was acquitted on two counts.

At trial, the appellant led evidence of his good character. The prosecution responded with rebuttal evidence, including evidence from the appellant's then-wife of his aggression towards her, and evidence of violence towards the children on occasions not charged. The trial judge directed the jury on the use of both the good character evidence and the rebuttal material.

The appellant appealed against all convictions. His grounds challenged the prosecutor's conduct in closing address, the adequacy of the jury directions on character evidence, and the reasonableness of the verdicts.

  • Whether the prosecutor's use of rebuttal evidence in closing address constituted an impermissible use of that material, causing a miscarriage of justice (Ground 1)
  • Whether the trial judge's directions were inadequate as to: (a) the prohibited uses of rebuttal character evidence; and (b) the nature and extent of the good character evidence adduced at trial (Ground 2)
  • Whether the convictions on each of the eleven counts were unreasonable (Ground 3)

Decision

Ground 1 (prosecutor's closing address): The Court, following the reasons of N Adams J, rejected this ground. The prosecutor's use of the rebuttal evidence in closing address did not constitute an impermissible misuse of that material so as to occasion a miscarriage of justice.

Ground 3 (unreasonable verdicts): Following the reasons of R A Hulme J, the Court also rejected this ground. The prosecution relied on the evidence of two young child complainants and their mother. The defence offered denials and good character evidence. The Court was not persuaded that the verdicts were unreasonable or could not be supported by the evidence.

Ground 2 (adequacy of jury directions): Basten JA addressed this ground in detail. The analysis required a careful distinction between two categories of evidence: tendency evidence of violence towards the children (admitted without objection under s 97 of the Evidence Act 1995 (NSW)), and evidence of aggression towards the mother (admitted as rebuttal of good character only, on the trial judge's ruling). Because the tendency evidence was properly admissible for a purpose directly relevant to guilt, the jury could use it in assessing whether the charges were proved. The rebuttal evidence, by contrast, was available only to diminish the weight of the good character case, not as propensity evidence going to guilt.

The Court found that, viewed against the conduct of the defence at trial, the directions given were not inadequate so as to cause a miscarriage. Defence counsel had made a deliberate and rational choice not to formally adduce good character evidence in the conventional sense, and had not sought further directions from the trial judge. In those circumstances, the appellant had not lost a real chance of acquittal through any failure in the directions. Ground 2 was dismissed on both limbs.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that rebuttal evidence admitted solely to diminish good character evidence carries a restricted use: under general law principles and the Evidence Act, the jury must not use such evidence as propensity evidence going directly to guilt.
  • Tendency evidence admitted under s 97 of the Evidence Act 1995 (NSW) occupies a different category from rebuttal character evidence. Where tendency evidence is properly admitted, the jury may use it in assessing whether the charged conduct is proved, and it may also have the incidental effect of rebutting good character.
  • Under s 110 of the Evidence Act, a defendant in criminal proceedings may lead character evidence despite the hearsay, opinion, tendency, and credibility rules. The basis of admissibility then shapes the directions a trial judge must give about permissible uses.
  • In dismissing Ground 2, the Court applied the principle that a miscarriage of justice requires the appellant to have lost a real or fairly open chance of acquittal. A rational forensic decision not to seek particular directions at trial weighs heavily against that conclusion.
  • Good character evidence retains significant force at trial, capable in appropriate cases of being the decisive factor in a not guilty verdict, by bearing both on the probability of guilt and on the accused's credibility.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 9, 55, 76, 94, 95, 97, 98, 101A, 102, 109, 110, 136
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 293A, 294
- Crimes Act 1900 (NSW), ss 61, 61O, 61M, 412, 413
- Crimes Act 1958 (Vic), ss 47A, 399

Cases:
- Melbourne v The Queen (1999) 198 CLR 1
- Papakosmas v The Queen (1999) 196 CLR 297
- TKWJ v The Queen (2002) 212 CLR 124
- Attwood v The Queen (1960) 102 CLR 353
- BRS v The Queen (1997) 191 CLR 275
- GAX v The Queen (2017) 91 ALJR 698
- Hughes v The Queen (2017) 263 CLR 338
- Hoch v The Queen (1988) 165 CLR 292
- Gilbert v The Queen (2000) 201 CLR 414
- Donnini v The Queen (1972) 128 CLR 114
- Braysich v The Queen (2011) 243 CLR 434
- Eastman v The Queen (1997) 76 FCR 9
- Hamilton (a pseudonym) v R [2020] NSWCCA 80
- ARS v R [2011] NSWCCA 266
- Clegg v R [2017] NSWCCA 125