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11
Court of Criminal Appeal 27 April 2020

Hamilton (a pseudonym) v R

[2020] NSWCCA 80

Sexual offences
CRIME ADMISSIBLE FOR TENDENCY PURPOSES WHETHER AN ANTI TENDENCY DIRECTION WAS REQUIRED R 4 CRIMINAL APPEAL RULES CRIME CHARACTER EVIDENCE

Citation: Hamilton (a pseudonym) v R [2020] NSWCCA 80
Court: NSW Court of Criminal Appeal
Date: 27 April 2020
Judge(s): Macfarlan JA; Adamson J; Beech-Jones J

Background

The appellant, referred to by the pseudonym "Hamilton," was tried before a judge and jury in early 2019 on 10 charges of aggravated indecent assault of three of his five children. The complainants were his daughter (aged 15 at the time of the alleged offending) and two sons (aged 6-7 and 11-12 respectively). The jury returned guilty verdicts on all 10 counts, and the appellant was sentenced to an aggregate head sentence of four and a half years imprisonment.

The defence case at trial was that the complainants had fabricated the allegations under the influence of their mother, who was said to bear extreme animosity toward the appellant following the breakdown of the relationship. Defence counsel deliberately chose not to seek separate trials, calculating that the inconsistencies in the children's evidence would undermine the Crown's case collectively.

Prior to trial, the Crown served a tendency evidence notice. The trial judge admitted certain evidence of uncharged acts but ruled it could not be used for tendency reasoning. A central issue on appeal was whether the trial judge was required to give the jury an "anti-tendency direction" in relation to evidence from the multiple complainants, and whether failure to do so caused a miscarriage.

  • Whether the trial miscarried because the trial judge did not warn the jury that it could not use tendency reasoning when considering the evidence from the three complainants against each other (Ground 1)
  • Whether the trial miscarried because bad character evidence, including prior convictions for common assault, was admitted and used in a way that was prejudicial to the appellant (Ground 2)
  • Whether the jury's verdicts were unreasonable and unsupported by the evidence (Ground 3)

Decision

Ground 1 (Anti-Tendency Direction): The Court divided on this ground. Macfarlan JA, as the primary author, found that the trial judge's failure to give an anti-tendency direction in relation to the evidence of all three complainants caused the trial to miscarry. Although trial counsel had not sought such a direction (requiring the appellant to seek leave under r 4 of the Criminal Appeal Rules to raise the point on appeal), the majority determined that this was not a deliberate and informed forensic decision to forego the direction. Rather, it was an oversight. The absence of an appropriate warning created a real risk that the jury used the evidence of each complainant to bolster its assessment of the others' credibility through impermissible tendency reasoning.

Ground 2 (Character Evidence): All three judges agreed that leave should be refused to raise Ground 2. The bad character evidence, including material relating to the "Rugby Ball Incident" and the appellant's prior assault convictions, had been introduced with the participation or concurrence of defence counsel as part of deliberate forensic decisions. The Court found no basis to intervene on this ground.

Ground 3 (Unreasonable Verdict): All three judges agreed this ground failed. Both Adamson J and Beech-Jones J independently confirmed that, having reviewed the trial evidence in full, it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt on each count. Neither judge entertained the requisite doubt. Because Ground 3 failed, the appellant was not entitled to an acquittal, only to a retrial.

Summing Up Process: Adamson J noted that the trial judge had required the parties to draft and agree upon a summing up, which his Honour then read to the jury. Without deciding whether this practice was improper (it was not argued), Adamson J confirmed that summing up is a function that belongs exclusively to the trial judge and cannot be delegated to the parties.

Orders Made

  • Leave under r 4 of the Criminal Appeal Rules granted to raise Ground 1, refused for Ground 2
  • Leave to appeal granted on Grounds 1 and 3
  • Appeal allowed on Ground 1; appeal dismissed on Ground 3
  • All 10 convictions quashed
  • Retrial directed on the charges in the indictment
  • The sentence imposed by Williams DCJ was varied under s 28A(2) of the Criminal Appeal Act 1912 to reflect time spent on bail pending appeal: the aggregate sentence of 4 years and 6 months to commence 27 April 2020 and expire 26 October 2024, with the non-parole period expiring 26 December 2022

Key Takeaways

  • Where evidence from multiple complainants is admitted in a single trial but the trial judge rules it is not cross-admissible for tendency purposes, an anti-tendency direction to the jury is required. Failure to give such a direction can constitute a miscarriage of trial even where defence counsel did not request it at trial.
  • Leave under r 4 of the Criminal Appeal Rules may be granted on appeal where the failure to seek a direction at trial was an oversight rather than a deliberate, informed forensic choice. The distinction between inadvertent omission and conscious forensic decision is critical to whether the point can be raised.
  • Bad character evidence introduced with the participation or concurrence of defence counsel, as part of legitimate tactical decisions, will generally not provide grounds for appellate intervention. The Court declined to grant leave on Ground 2 precisely because defence counsel had made deliberate choices about how that evidence was handled.
  • A finding that verdicts were reasonable, and that it was open to the jury to be satisfied of guilt beyond reasonable doubt, does not prevent a retrial where a separate ground (such as misdirection) has caused the convictions to be quashed.
  • Summing up to the jury is the sole responsibility of the trial judge. The Court of Criminal Appeal confirmed that this function cannot be delegated to the parties, even in a practical or collaborative form.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 18(2), 28A(2)
- Criminal Appeal Rules, r 4
- Criminal Procedure Act 1986 (NSW), s 161(1)
- Evidence Act 1995 (NSW), s 97

Key Cases:
- McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12
- R v Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846
- Lane v The Queen (2018) 92 ALJR 689; [2018] HCA 28
- Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Hamilton (a pseudonym) [2019] NSWDC 382