Citation: Croft v R [2021] NSWCCA 146
Court: NSW Court of Criminal Appeal
Date: 5 July 2021
Judge(s): Basten JA (primary reasons); Price J and Garling J (agreeing)
Background
The appellant was convicted after a jury trial of multiple offences of indecent assault and rape committed in the late 1970s against two victims who were, at the relevant times, wards of the State placed in his care at a rural property near Armidale. The male complainant (referred to as MM) was 12 to 13 years old during the relevant periods. The female complainant (referred to as FF) was 16 years old when she lived with the appellant and his wife for approximately 12 months from early 1979. A consistent feature of the alleged offending against both complainants was the use of physical violence in the context of what was described as discipline.
The appellant did not give evidence at trial. His wife and 11 other defence witnesses did, and each was asked whether the appellant was a bad-tempered, aggressive, or violent man. All denied that he was. The prosecution then sought to call evidence in reply, which the trial judge permitted over the defence's objection. The appellant was convicted on all counts and sought leave to appeal on two grounds.
Legal Issues
- Whether the trial judge erred by permitting the prosecution to call evidence in rebuttal, after the defence called witnesses who gave evidence that the appellant was not violent or bad-tempered (Ground 1).
- Whether the trial judge erred by declining to explain the meaning of "beyond reasonable doubt" to the jury and instead directing them that its meaning was a question of fact for them to determine (Ground 2).
Decision
Ground 1: Prosecution evidence in reply
The Court considered whether the Crown impermissibly split its case by reserving rebuttal evidence, or alternatively whether the rebuttal was properly available in response to character or tendency evidence called by the defence. The applicable principle, drawn from The Queen v Chin (1985) 157 CLR 671, is that the prosecution must present its whole case before closing, but an exception exists where the defence raises a matter that was not reasonably foreseeable before the defence case opened. The Court found that the specific character evidence elicited by the defence, namely direct denials that the appellant was violent or bad-tempered, was not reasonably foreseeable in advance of those witnesses being called. The prosecution was therefore entitled to call evidence in reply to rebut that character evidence.
The Court also considered the operation of s 110 of the Evidence Act 1995 (NSW), which specifically permits the prosecution to adduce evidence to rebut evidence of good character adduced by a defendant. The defence had put the appellant's non-violent character squarely in issue. On that basis, the rebuttal evidence of angry or aggressive behaviour was properly admitted. Ground 1 was rejected.
Ground 2: Jury direction on "beyond reasonable doubt"
During deliberations, the jury asked the trial judge for assistance with the meaning of "beyond reasonable doubt." The judge told the jury that the phrase's meaning was a question of fact for them, offered what he described as a "rather longwinded apology" for being unable to assist further, and did not compare the standard with the civil standard of proof on the balance of probabilities. The appellant argued these responses were erroneous. The Court, drawing on The Queen v Dookheea (2017) 262 CLR 402, confirmed that a judge is not obliged to define "beyond reasonable doubt" and that describing its meaning as a question of fact was not wrong. The judge had directed the jury to apply the standard on approximately 30 occasions throughout the summing-up, and the jury's very question demonstrated their awareness of the standard. The Court found no error, and no obligation existed to introduce a comparison with the civil standard. Ground 2 was also rejected.
Orders Made
• Leave to appeal against convictions granted
• Appeal dismissed
The Court's conclusions were that leave to appeal was granted (the grounds not involving questions of law alone), but the appeal was dismissed.
Key Takeaways
- Where the defence calls witnesses to deny that an accused is violent or bad-tempered, those denials constitute good character evidence that the prosecution may rebut under s 110 of the Evidence Act 1995 (NSW), provided the nature of that evidence was not reasonably foreseeable before the defence case commenced.
- The rule against case-splitting does not prevent the Crown from calling rebuttal evidence in response to defence character evidence that could not have been anticipated at the close of the prosecution case.
- A trial judge is not required to define or explain "beyond reasonable doubt" when asked by a jury, and characterising the phrase's meaning as a question of fact for the jury is not a misdirection.
- No obligation exists on a trial judge to compare the criminal standard of proof with the civil standard of proof on the balance of probabilities; such a comparison may in some circumstances be unhelpful rather than clarifying.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an apology by the trial judge for being unable to assist with the meaning of "beyond reasonable doubt" does not constitute an abrogation of responsibility amounting to error, where the standard has been clearly and repeatedly communicated throughout the summing-up.
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 63, 78, 81, 578A
- Evidence Act 1995 (NSW), s 110
Cases
- The Queen v Chin (1985) 157 CLR 671; [1985] HCA 35
- The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36