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Court of Criminal Appeal 6 February 2020

Jackson v R

[2020] NSWCCA 5

Sexual offences
CRIMINAL LAW APPEALS APPEAL AGAINST CONVICTIONS SEXUAL ASSAULT TENDENCY EVIDENCE MULTIPLE COMPLAINANTS

Citation: Jackson v R [2020] NSWCCA 5
Court: Court of Criminal Appeal, NSW
Date: 6 February 2020
Judges: Hoeben CJ at CL, Walton J, Price J (unanimous)

Background

The appellant stood trial in the District Court at Sydney on six counts of sexual offending against two complainants, both young males. The alleged offending against the first complainant occurred during a trip to Batemans Bay in 2007, when he was 13 years old. The alleged offending against the second complainant occurred between September 2009 and January 2010, when he was approximately six years old.

The Crown relied on tendency evidence to establish that the appellant had a sexual interest in young males and was willing to act on that interest. That tendency evidence included the evidence of the second complainant in relation to counts concerning the first, and vice versa. It also included the evidence of a third witness who was not a complainant on the indictment, but who gave evidence of similar conduct by the appellant when he was approximately 10 or 11 years old.

The jury returned guilty verdicts on counts 1 and 2 (both relating to the first complainant) and not guilty verdicts on the remaining four counts. The appellant sought leave to appeal against the two convictions.

  • Whether the trial judge erred by directing the jury that the criminal standard of proof applied before it could use the tendency evidence, rather than the approach subsequently confirmed in The Queen v Bauer [2018] HCA 40 (which held that no elevated standard of proof applies to tendency evidence)
  • Whether that direction, given before Bauer was decided, elevated the tendency evidence to an essential intermediate fact in the Shepherd v The Queen sense, thereby creating a misdirection
  • Whether the criminal standard direction gave rise to an unacceptable risk of a compromise verdict by the jury
  • Whether the tendency evidence was admissible at all, including whether its probative value was substantially outweighed by the risk of unfair prejudice under ss 101 and 137 of the Evidence Act 1995 (NSW)

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds. Price J delivered the substantive reasons, with which Hoeben CJ at CL and Walton J agreed.

On the central issue of the standard of proof direction, the Court accepted that the trial judge's direction predated Bauer and was therefore inconsistent with the approach that Bauer later confirmed. However, the Court found that this did not constitute a reversible error in the circumstances of this trial. The tendency evidence was not an essential intermediate fact of the kind described in Shepherd v The Queen: it was not a fact that the jury had to be satisfied of beyond reasonable doubt before proceeding to determine guilt. Directing the jury to apply the criminal standard therefore did not distort the structure of the verdicts in the way the appellant argued.

On the compromise verdict argument, the Court rejected the contention that the criminal standard direction created an unacceptable risk that the jury had compromised by acquitting on some counts and convicting on others. The verdicts were explicable by the nature and quality of the evidence on each individual count, not by any improper compromise resulting from the direction.

On admissibility, the Court held that the tendency evidence, including the third witness's account, had significant probative value. That value was capable of establishing both the tendency the Crown asserted and that the appellant acted upon it. The Court found that this probative value was not substantially outweighed by the risk of unfair prejudice, satisfying the requirements of both ss 101 and 137 of the Evidence Act.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge's direction requiring the criminal standard of proof to be applied to tendency evidence does not automatically constitute a ground for overturning a conviction, particularly where the direction was given before Bauer clarified the applicable standard.
  • Tendency evidence does not become an "essential intermediate fact" in the Shepherd sense merely because the jury is directed to apply the criminal standard to it. The error in applying such a standard is not necessarily reversible if the overall structure of the verdicts remains coherent.
  • In dismissing the appeal, the Court reinforced that mixed verdicts across multiple counts in a multi-complainant trial are not, without more, evidence of an impermissible jury compromise attributable to a misdirection on the standard of proof.
  • Under ss 101 and 137 of the Evidence Act 1995 (NSW), the admissibility of tendency evidence depends on whether its significant probative value is substantially outweighed by unfair prejudicial effect. Here, evidence of a tendency to have a sexual interest in young males and to act on it was found to clear that threshold.
  • The Queen v Bauer [2018] HCA 40 remains the controlling authority on the standard of proof for tendency evidence, confirming that no elevated standard applies. This decision illustrates how pre-Bauer misdirections will be assessed on their actual impact on the verdicts rather than as automatic grounds for appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 66C(2), 66D
- Evidence Act 1995 (NSW), ss 95, 97, 101, 137
- Criminal Appeal Rules, r 4

Cases:
- The Queen v Bauer [2018] HCA 40
- Shepherd v The Queen (1990) 170 CLR 573
- HML v The Queen (2008) 235 CLR 334
- S v The Queen (1989) 168 CLR 266
- Gilbert v The Queen (2000) 201 CLR 414
- FDP v R (2008) 74 NSWLR 645; [2008] NSWCCA 317
- DJV v R [2008] NSWCCA 272
- BC v R [2019] NSWCCA 111
- Doyle v R [2014] NSWCCA 4
- JDK v R [2009] NSWCCA 76
- DJS v R [2010] NSWCCA 200