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Court of Criminal Appeal 22 December 2020

Taylor v R

[2020] NSWCCA 355

Assault & violenceTheft & propertyDomestic & family violence
CRIMINAL LAW CHALLENGE TO CONVICTION STOREY APARTMENT BUILDING TENDENCY EVIDENCE TENDENCY EVIDENCE

Citation: Taylor v R [2020] NSWCCA 355
Court: NSW Court of Criminal Appeal
Date: 22 December 2020
Judge(s): Bell P; Walton J; Beech-Jones J

Background

The applicant was tried in the District Court on a number of domestic violence-related offences arising from conduct in March 2018 against a former intimate partner. The jury acquitted him on three counts but convicted him on six, including breaking and entering, intimidation, and possession of a housebreaking implement.

One conviction (Count 9) rested on the Crown's proposition that the applicant gained external access to the fourth-floor balcony of the complainant's apartment in a five-storey block. The trial judge observed that it remained "inexplicable" how this external access could have been achieved, yet the conviction was entered.

In support of the charges, the Crown tendered tendency evidence drawn from a 2010 agreed statement of facts used at sentencing for a 2008 assault on the applicant's then-wife. That statement described a history of domestic violence, verbal aggression, intimidation, a violent assault causing fractured ribs, and a detain-for-advantage count. The applicant was sentenced to an aggregate term of 22 months imprisonment with a 12-month non-parole period.

  • Whether the conviction on Count 9 (entering the dwelling knowing persons were inside) was unreasonable, given there was no evidence explaining how the applicant could have accessed the fourth-floor balcony externally.
  • Whether conduct from 2008 to 2010, nearly a decade before the charged events, had "significant probative value" as tendency evidence under s 97 of the Evidence Act 1995 (NSW).
  • Whether the probative value of the tendency evidence substantially outweighed its prejudicial effect, as required by s 101(2) of the Evidence Act 1995 (NSW).
  • What orders should follow on sentence given the acquittal on Count 9.

Decision

Count 9: Unreasonable verdict

The Court was unanimous on this ground. No evidence was led by the Crown to explain how the applicant could have scaled the exterior of the building to reach the fourth-floor balcony. The Crown contended that using a step ladder was the only rational inference, but the Court rejected this, finding there were multiple available inferences consistent with innocence. It was therefore not reasonably open to the jury to be satisfied beyond reasonable doubt that the applicant had gained external access, and the conviction could not stand.

Tendency evidence: Majority position (Walton and Beech-Jones JJ)

The majority upheld the admission of the tendency evidence. Although more than nine years separated the 2008 conduct from the charged events in 2018, both involved violence or threats directed at women with whom the applicant had an intimate relationship. Critically, there was no evidence the applicant had formed any other relationship in the intervening period, which meant the gap in time did not undermine the tendency's relevance in the way it might otherwise have. The majority found the tendency evidence had significant probative value and that its probative value substantially outweighed any prejudicial effect, particularly given the trial judge's careful directions to the jury on the issue.

Tendency evidence: Dissent (Bell P)

Bell P dissented on tendency evidence. Her Honour considered the conduct in the tendency evidence occurred in materially different circumstances, the temporal gap was significant, and the tendency was formulated at a level of generality that did not "strongly support" proof of any fact in issue. Her Honour further found that even if the evidence had some probative value, it did not reach the threshold required by s 101(2), and the risk of an adverse emotional response by the jury to the violence inflicted on the former wife was not sufficiently neutralised by the trial judge's directions.

Sentence consequences

Because the conviction on Count 9 was set aside and an acquittal entered, the aggregate sentence could not stand. The Court substituted a fresh aggregate sentence of 14 months, which had already expired by the time of the decision, with the effect that the applicant was no longer subject to parole conditions.

Orders Made

  • Leave granted to appeal conviction on Count 9; appeal allowed; conviction set aside and acquittal entered.
  • Leave otherwise granted to appeal against remaining convictions; appeal dismissed.
  • Original aggregate sentence of imprisonment set aside and replaced with a fresh aggregate term of 14 months commencing 5 October 2019 and expiring 4 December 2020, with a non-parole period of 10 months.
  • Indicative sentences forming the aggregate:
  • Count 4: 12 months imprisonment
  • Count 11: 4 months imprisonment
  • Count 12: 4 months imprisonment

Key Takeaways

  • A conviction for entering a dwelling by external means cannot stand where no evidence, direct or inferential, explains how the accused could physically have achieved that access, even where other aspects of the Crown case are otherwise made out.
  • Under s 97 of the Evidence Act 1995 (NSW), a significant temporal gap between tendency conduct and charged conduct does not automatically defeat a finding of significant probative value. The majority confirmed that the gap must be assessed in context, including whether the accused had other relevant relationships in the intervening period.
  • The majority distinguished McPhillamy v R (2018) 92 ALJR 1045, finding that case did not mandate exclusion here given the particular nature of the tendency alleged (violence or threats in intimate relationships) and the absence of other intervening relationships.
  • Bell P's dissent provides a detailed review of the principles governing tendency evidence under ss 97 and 101(2), including the requirement that the tendency "strongly support" proof of a fact in issue and the risk that broadly formulated tendencies may lack the specificity needed to satisfy that threshold.
  • Where a conviction forming a significant component of an aggregate sentence is set aside on appeal, the aggregate sentence as a whole must be reconsidered, even where the remaining individual sentences are otherwise unimpeached.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 38, 97, 97A, 101(2)
- Crimes Act 1900 (NSW), ss 105A, 111(2), 115A
- Crimes (Sentencing Procedure) Act 1999, s 53A(2)(c)
- Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)

Cases
- M v The Queen (1994) 181 CLR 487
- Pell v The Queen (2020) 94 ALJR 394
- Hughes v R (2017) 263 CLR 338
- McPhillamy v R (2018) 92 ALJR 1045
- IMM v R (2016) 257 CLR 300
- DAO v The Queen (2011) 81 NSWLR 568
- DSJ v The Queen; NS v The Queen (2012) 84 NSWLR 758
- R v Bauer (2018) 266 CLR 56
- El-Haddad v R (2015) 88 NSWLR 93
- BP v R; R v BP [2010] NSWCCA 303
- Armstrong v R [2017] NSWCCA 323