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Court of Criminal Appeal 29 July 2020

Casey v R

[2020] NSWCCA 177

Sexual offences

Citation: Casey v R [2020] NSWCCA 177
Court: NSW Court of Criminal Appeal
Date: 29 July 2020
Judges: Hoeben CJ at CL; Adamson J; Bellew J

Background

The applicant was convicted by jury of two counts of sexual offences against two brothers, AB and JB, committed in the late 1980s. The offences involved indecent assault and related conduct alleged to have occurred when the complainants were children in the applicant's care.

The procedural history was complex. A 2016 trial on 27 counts (22 substantive) resulted in acquittals on 16 counts and a hung jury on 11. At a retrial in 2018, the applicant faced a reduced indictment. The evidence of the complainants was edited to remove references to counts on which the applicant had been acquitted or which had been stayed.

At both trials, the Crown sought to rely on tendency evidence from a witness, AL, who gave evidence that the applicant had sexually abused him in 1978 or 1979, approximately seven or eight years before the conduct alleged by AB and JB.

  • Whether the trial judge's failure to give a full "Markuleski direction" (a direction that the jury may use any reasonable doubt on one count to assess the evidence on other counts) caused a miscarriage of justice
  • Whether continuing the prosecution after the first trial, particularly using edited complainant evidence, constituted an abuse of process amounting to a miscarriage of justice
  • Whether the evidence of tendency witness AL was admissible under s 97 of the Evidence Act 1995 (NSW), specifically whether it possessed the required substantial probative value
  • Whether the jury's verdicts of guilty on counts 1 and 4 were unreasonable

Decision

Ground 1: Markuleski direction. The Court of Criminal Appeal granted leave to raise this ground but dismissed it. Although the trial judge had not given a complete Markuleski direction, the Court found no substantial miscarriage of justice arose on the facts of this case. The jury's verdicts were internally consistent and explicable by reference to specific features of the evidence, including the applicant's evidence about not wearing pyjamas, the sequencing of alleged acts, and the relative reliability of each complainant's account.

Ground 2: Abuse of process. The Court rejected the argument that the continued prosecution constituted an abuse of process. The editing of complainant evidence to remove references to stayed counts and counts resulting in acquittal was found to be appropriate, not improper. The Crown's conduct in withdrawing tendency evidence that related solely to charges resulting in acquittal was also consistent with proper practice. No miscarriage of justice was established.

Ground 3: Tendency evidence. The Court addressed whether AL's evidence met the threshold of "substantial probative value" required by ss 97 and 101 of the Evidence Act. There was some confusion in the 2016 trial about whether the original ruling had properly applied s 97, but the Court treated admissibility as a matter for it to determine afresh. The Court found that the similarities between AL's account and the conduct alleged by AB and JB, including the age of the complainants, the church premises, the applicant's position of care, and the nature of the physical acts, were sufficient to give the evidence substantial probative value. The probative value also substantially outweighed the danger of unfair prejudice.

Ground 4: Unreasonable verdict. All three judges independently reviewed the evidence and concluded the verdicts were not unreasonable. The Court found it was open to the jury, acting rationally, to convict on counts 1 and 4. Adamson J stated she did not herself entertain a doubt about the applicant's guilt, having read the transcripts and exhibits. Bellew J undertook his own assessment and reached the same conclusion.

Orders Made

  • Leave granted to rely on ground 1 under rule 4 of the Criminal Appeal Rules (to the extent required)
  • Leave to appeal granted on grounds 1, 2, 3 and 4
  • Appeal dismissed

Key Takeaways

  • A failure to give a complete Markuleski direction does not automatically produce a miscarriage of justice. The Court of Criminal Appeal examined whether, in the particular circumstances of the trial, any substantial miscarriage actually resulted, and found it did not.
  • Editing complainant evidence at a retrial to remove references to counts resulting in acquittal or stays is not, of itself, an abuse of process. The Court found the Crown's conduct was appropriate and caused no unfairness to the applicant.
  • Under ss 97 and 101 of the Evidence Act 1995 (NSW), tendency evidence from an uncharged acts witness can satisfy the "substantial probative value" threshold where the similarities between the tendency conduct and the charged conduct are sufficiently specific and numerous, including as to the victim's age, the setting, the relationship of care, and the nature of the physical acts.
  • In assessing an unreasonable verdict ground, the Court of Criminal Appeal conducts its own independent review of the evidence. Each judge here did so separately, and all three declined to entertain a doubt about the applicant's guilt.
  • Procedural complexity across multiple trials, including a partial hung jury, stayed counts, and multiple tendency notices, does not in itself establish abuse of process or miscarriage of justice absent identifiable unfairness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D, 61E, 78K
- Criminal Appeal Act 1912 (NSW), ss 5, 5F
- Criminal Appeal Rules, r 4
- Criminal Procedure Act 1986 (NSW), ss 130A, 293, 306I, 306J
- Evidence Act 1995 (NSW), ss 97, 98, 101

Cases:
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
- Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
- Strickland (a pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 272 A Crim R 69
- The Queen v Bauer [2018] HCA 40; (2018) 92 ALJR 846
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- DF v R [2012] NSWCCA 171; (2012) A Crim R 178
- R v Ford [2006] QCA 142
- Onassis v Vergottis [1968] 2 Lloyd's Rep 403