AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 30 June 2022

Addo v R

[2022] NSWCCA 141

Also reported as (2022) 108 NSWLR 522
Sexual offences
CRIMINAL LAW EVIDENCE TENDENCY AND COINCIDENCE EVIDENCE WHERE CROWN SERVED CO INCIDENCE NOTICE WHERE EVIDENCE ADMITTED

Citation: Addo v R [2022] NSWCCA 141
Court: NSW Court of Criminal Appeal
Date: 30 June 2022
Judges: Beech-Jones CJ at CL, Adamson J, Bellew J

Background

Following a jury trial in the District Court, the appellant was convicted of 12 counts of sexual offending against a complainant over a period spanning her childhood. He was sentenced to a total term of 26 years' imprisonment with a non-parole period of 16 years. The Crown's case relied, in part, on evidence from the complainant's mother that the appellant had sexually assaulted her in a manner said to closely resemble the assaults alleged by the complainant.

The Crown served a coincidence notice in relation to the mother's evidence. Coincidence evidence, under s 98 of the Evidence Act 1995 (NSW), is evidence of two or more events that are so similar it would be improbable they occurred coincidentally, and which can be used to reason that the accused committed the acts in question. The trial judge admitted that evidence.

During deliberations, the jury indicated it could not reach unanimous verdicts, prompting a Black direction (a direction inviting jurors to try to reach agreement). After further deliberations produced only partial majority verdicts, one juror (Juror G) reported dangerously elevated blood pressure and was subsequently discharged when they failed to attend court the following day. The trial judge refused an application to discharge the entire jury. Verdicts were returned shortly afterwards. The appellant sought leave to appeal out of time, raising three grounds.

  • Whether the trial judge erred in admitting the coincidence evidence from the complainant's mother
  • Whether the trial judge's directions to the jury on how to use that coincidence evidence were legally correct
  • Whether the trial judge erred in refusing to discharge the entire jury following the discharge of Juror G, including a submission that the discharged juror would have been sympathetic to the appellant on the basis of race

Decision

Ground 1: Admission of the coincidence evidence

The Court of Criminal Appeal dismissed this ground. It held there is no relevant distinction between tendency evidence and coincidence evidence for the purposes of the admissibility analysis, and therefore the Court did not need to scrutinise the trial judge's reasons for admitting the evidence in detail. Section 98 of the Evidence Act operates as an exclusionary rule, but the Court found a sufficient basis for admitting the mother's evidence that was not caught by that exclusion.

Ground 2: The direction on coincidence evidence

This ground succeeded. The Court found the trial judge's direction failed to identify the correct path of reasoning for coincidence evidence, which requires the jury to consider whether the similarities between two or more events make it improbable they occurred by coincidence, thereby supporting an inference that the accused committed the acts. Instead, the direction effectively reversed that reasoning process and resembled an invitation to engage in tendency reasoning (which concerns a person's disposition to act in a particular way), a different and separately regulated category. The jury therefore received evidence of serious alleged offending against the mother without any adequate instruction on the only permissible basis for using it. The Court described this as an irregularity in the conduct of the trial.

Ground 3: Refusal to discharge the jury after Juror G was discharged

The Court rejected outright the submission that Juror G, described as appearing to be of Black African ancestry, would have been supportive of the appellant (described as a dark-skinned Aboriginal man) on grounds of race. The Court described this submission as entirely overlooking the trial judge's direction to the jury to act impartially, and firmly rejected it.

However, the Court upheld Ground 3 on a different basis. It accepted that Juror G was likely a dissenting juror. The critical difficulty was that, while some of the verdicts returned appeared to be the unanimous verdicts of the remaining 11 jurors (consistent with the earlier indication of 11:1 agreement on some counts), the Court could not affirmatively conclude that all verdicts fell into that category. If any verdict had not been unanimous among the remaining 11 jurors, the continuation of the trial without Juror G became a significant problem. That uncertainty was sufficient to establish a risk of a substantial miscarriage of justice.

Orders Made

  • The time for filing the notice of appeal extended to 26 October 2021
  • The appeal against conviction allowed
  • All convictions and sentences imposed in the District Court quashed
  • The matter remitted to the District Court arraignment list on 15 July 2022

Key Takeaways

  • A coincidence evidence direction must identify the correct reasoning path: the jury must be instructed to reason from the improbability of coincidence to the conclusion that the accused committed the acts, not to engage in tendency reasoning about the accused's character or disposition.
  • Where a trial judge's direction on coincidence evidence reverses the reasoning process and mirrors tendency reasoning instead, that constitutes an irregularity in the conduct of the trial capable of producing a substantial miscarriage of justice.
  • Discharging an individual juror does not automatically require discharge of the entire jury, but where it cannot be affirmatively determined that all verdicts returned by the reduced jury were unanimous among the remaining members, a risk of substantial miscarriage of justice arises.
  • The submission that a juror would be sympathetic to an accused on the basis of shared racial background was firmly rejected by the Court of Criminal Appeal as wholly inconsistent with the obligation of jurors to act impartially in accordance with the trial judge's directions.
  • Under s 98 of the Evidence Act 1995 (NSW), coincidence evidence operates within an exclusionary framework, but admissibility and the correctness of the jury direction on how to use the evidence are separate questions, each capable of independent error.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 98
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Evidence Amendment Act 2007 (NSW)
- Jury Act 1977 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases
- The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
- Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136
- Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7
- BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215
- Haile v R [2022] NSWCCA 71
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- DSJ v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9
- GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40
- Hofer v R (2021) 95 ALJR 937; [2021] HCA 36
- Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174
- Phan v R [2018] NSWCCA 225
- House v The King (1936) 55 CLR 499