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Court of Criminal Appeal 27 July 2020

BRC v R

[2020] NSWCCA 176

Also reported as (2020) 284 A Crim R 124
Sexual offences
TENDENCY EVIDENCE CONTEXT EVIDENCE NO MISCARRIAGE OF JUSTICE DEMONSTRATED

Citation: BRC v R [2020] NSWCCA 176
Court: NSW Court of Criminal Appeal
Date: 27 July 2020
Judge(s): Simpson AJA at [1]; Johnson J at [83]; Hamill J at [93]

Background

The applicant was tried in the District Court on a 12-count indictment involving historical sexual and indecency offences against four child complainants, with conduct alleged between August 1992 and May 1999. He pleaded guilty to one count of committing an act of indecency with a child under 10, was convicted by a jury on seven counts of sexual intercourse with a child under 10 and one count of indecent assault, and was acquitted on two counts. He was sentenced to an aggregate term of 12 years imprisonment with a non-parole period of nine years.

At trial, the Crown relied on the evidence supporting each charged count as tendency evidence in relation to the other counts. The Crown also adduced evidence of two uncharged acts of a sexual character as "context evidence," though it did not rely on those acts as tendency evidence. The trial judge circulated a draft summing-up to counsel before delivering it, and defence counsel raised no objection to the proposed directions on tendency or context evidence.

On appeal, the applicant argued that the trial judge erred by omitting two specific elements from the tendency evidence direction: a warning against reasoning that the accused was generally a person of bad character, and a direction against using uncharged conduct as a basis for punishing the accused by finding him guilty of the charged offences.

  • Whether the trial judge erred by omitting a "bad character" warning from the tendency evidence directions
  • Whether the trial judge erred by omitting a direction that the jury must not punish the accused for other conduct by finding him guilty of the charged offences
  • Whether the Criminal Trial Courts Bench Book prescribed mandatory directions or merely provided a guide to be adapted to the circumstances of the particular case
  • Whether the trial judge's interpolation that the context evidence direction "stands separately from" the tendency evidence directions constituted error

Decision

The Court unanimously refused leave to appeal, finding no error in the directions as given. Simpson AJA, with whom Johnson and Hamill JJ agreed, held that the Bench Book performs an advisory rather than prescriptive function. Trial judges are required to direct juries on the issues that arise in the particular case, and not every suggested Bench Book direction is necessarily suited to or required by the circumstances before the court.

On the "bad character" direction, Hamill J observed that where evidence has been admitted as tendency evidence, such a warning would almost certainly confuse the jury. The very purpose of tendency evidence, once admitted, is to permit propensity reasoning. A direction warning against that reasoning would effectively negate the correct tendency direction. It is difficult to conceive of a jury finding that an accused has a tendency to act on sexual attraction towards children without also considering him to be a person of bad character, making such a direction unlikely to reduce inherent prejudice.

On the "punishment" direction, the Court found it inapposite in this case because all of the tendency evidence consisted of the very acts charged in the indictment. The jury were entitled to use any of the charged conduct in assessing the remaining charges. As both Simpson AJA and Hamill J noted, such a direction is appropriate where tendency evidence consists of uncharged acts or where evidence is adduced as context, not where the tendency evidence and the charges are one and the same.

The Court also found no error in the trial judge's treatment of the context evidence direction. The judge correctly identified the distinction between evidence tendered as tendency evidence and evidence tendered as context evidence, and the interpolation complained of was accurate rather than misleading.

Orders Made

  • Time in which to appeal against conviction extended to the extent necessary
  • Leave under r 4 of the Criminal Appeal Rules to rely on the pleaded ground of appeal refused
  • Application for leave to appeal dismissed

Key Takeaways

  • The Criminal Trial Courts Bench Book has an advisory, not prescriptive, role. Suggested directions are a starting point to be modified to meet the needs of the particular case, not a mandatory template.
  • A "bad character" warning of the kind suggested in the Bench Book will rarely be appropriate in a trial where the prosecution is relying on tendency evidence, because such evidence is admitted precisely to permit propensity reasoning.
  • Where all tendency evidence consists of acts charged in the indictment, a direction against "punishing" the accused for uncharged conduct is unnecessary and potentially confusing. That direction is generally appropriate where tendency evidence arises from uncharged acts, or where context evidence is adduced.
  • In dismissing the appeal, the Court confirmed that the distinction between tendency evidence and context evidence is fundamental, and the directions required in each case turn on the purpose for which the evidence is tendered.
  • Johnson J noted that the tendency evidence field is an area of significant legislative development, including the commencement of the Evidence Amendment (Tendency and Coincidence) Act 2020, and that further appellate consideration of the reforms is anticipated.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61M(2), 61O(2), 66A
- Evidence Act 1995 (NSW), ss 97, 97A, 98, 99, 100, 101, 110
- Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(a), (b), 5F, 6(1)
- Criminal Appeal Rules, r 4
- Jury Directions Act 2015 (Vic), s 62

Cases
- AL v R [2017] NSWCCA 34
- Alford v Magee (1952) 85 CLR 437
- BC v R [2015] NSWCCA 327
- BP v R [2010] NSWCCA 303
- BRS v The Queen (1997) 191 CLR 275
- DAO v R (No 2) [2014] NSWCCA 126
- Hughes v The Queen (2017) 263 CLR 338
- IMM v The Queen (2016) 257 CLR 300
- Ith v R [2012] NSWCCA 70
- McPhillamy v The Queen [2018] HCA 52
- Pfennig v The Queen (1995) 182 CLR 461