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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: Court of Criminal Appeal
Date: 30 June 2022
Judge(s): Beech-Jones CJ at CL, Adamson J, Bellew J

Background

The appellant was convicted after a District Court trial on 14 counts of sexual offending committed against the complainant, who was his partner's daughter and lived with him at Doonside from childhood. The offending, as found by the jury, spanned roughly a decade beginning when the complainant was around seven years old and included offences of indecent assault, aggravated sexual assault, and acts of cruelty and coercion. The appellant was sentenced to 26 years' imprisonment with a 16-year non-parole period.

The appellant did not contest that the jury's verdicts were open on the evidence. Instead, he challenged the fairness of the trial on two principal grounds: that the jury received a flawed direction about coincidence evidence (specifically, evidence of similar sexual assaults the appellant was said to have committed against the complainant's mother), and that the trial judge erred in refusing to discharge the entire jury after an individual juror was excused mid-deliberation.

Because the appellant had been convicted in 2017 and sentenced in 2018, he required an extension of time to bring the appeal. That extension was granted.

Legal Issues

  • Whether evidence of similar sexual assaults committed by the appellant against the complainant's mother was properly admitted under s 98 of the Evidence Act 1995 (NSW) as coincidence evidence (Ground 1).
  • Whether the trial judge's direction to the jury about how to use that coincidence evidence was legally sound and, if not, whether a miscarriage of justice resulted (Ground 2).
  • Whether the trial judge erred in refusing to discharge the whole jury after an individual juror (Juror G) was excused during deliberations, in circumstances where Juror G appeared to have been a dissentient, and the remaining jury returned verdicts shortly thereafter (Ground 3).
  • Whether the submission that the discharged juror's perceived racial background made him likely to be sympathetic to the appellant provided any basis for finding a miscarriage of justice (Ground 3, subsidiary argument).

Decision

Ground 1: Admissibility of the coincidence evidence

The Crown adduced evidence from the complainant's mother (LT) that the appellant had sexually assaulted her using methods closely resembling those the complainant described, including biting her inner thigh to overcome resistance, forcing her jaw open for oral sex, and pinning her down with a key to her back. This evidence was admitted over objection under s 98 of the Evidence Act as coincidence evidence (at [42]). The Court held that s 98 operates as an exclusionary rule preventing evidence from being tendered on a coincidence basis unless its probative value significantly outweighs any danger of unfair prejudice (at [50]). The Court found that a valid basis for admission existed: the improbability of LT and the complainant independently giving such similar accounts of the appellant's conduct unless both were telling the truth, consistent with the reasoning in Pfennig v The Queen and confirmed in Saoud v R (at [96]). Ground 1 was rejected.

Ground 2: The jury direction on coincidence evidence

Although admission was upheld, the direction given to the jury on how to use LT's evidence was found to be legally defective. The Court identified that the correct path of coincidence reasoning in this case required the jury to move from the similarity in the two witnesses' accounts to a conclusion that such accounts were too similar to have been given independently by coincidence, and therefore that both witnesses were probably telling the truth (at [87]). Instead, the summing-up inverted that reasoning: it directed the jury to conclude, having already accepted both sets of allegations, that the offences were not coincidental (at [86]). Part of the direction also resembled a tendency direction, yet the jury was separately told it could not use the evidence as tendency evidence (at [88]). The end result was that the jury received LT's evidence without any sensible instruction on how to use it to reason towards accepting the complainant's account (at [100]). The Court held this amounted to an irregularity in the trial and a miscarriage of justice, with a real chance the misdirection affected the verdicts (at [100]). Ground 2 was upheld.

Ground 3: Discharge of the whole jury following Juror G's excusal

Juror G was discharged after failing to attend court during deliberations and sending communications indicating extreme stress. There was little doubt Juror G was a dissentient: the foreperson had already indicated that a unanimous verdict was unlikely, and Juror G's message about stress followed shortly after (at [150]). The trial continued with 11 jurors, who returned verdicts approximately 93 minutes after receiving a final direction. The Court applied the framework from BG v R and Filippou v The Queen, recognising that a trial must not continue with a reduced jury where there is a risk of substantial miscarriage of justice (at [144]-[147]). The Court found the evidence as to whether the remaining 11 jurors' verdicts were unanimous was equivocal at best: the jury note, the audio recording, and the Crown prosecutor's affidavit (sworn nearly five years after the events) did not affirmatively establish unanimity on all counts (at [152]-[153]). Because some verdicts may not have been unanimous, the continuation of the trial without Juror G fell within the third category in BG v R, creating a risk of substantial miscarriage of justice (at [154]-[155]). The racial composition argument, that Juror G was likely to have been sympathetic to the appellant because of his perceived appearance as a man of black African ancestry, was firmly rejected. That submission wholly overlooked the trial judge's direction requiring the jury to act impartially, and there was no basis for concluding any juror had disregarded it (at [131]-[132]).

Orders Made

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

Key Takeaways

  • Under s 98 of the Evidence Act 1995 (NSW), coincidence evidence in a multi-complainant sexual assault trial may properly be admitted on the basis that it is improbable two witnesses would independently give such similar accounts of an accused's conduct unless both were telling the truth, consistent with the reasoning from Pfennig v The Queen as applied in Saoud v R (at [96]).

  • A coincidence direction that inverts the required reasoning process, by directing the jury to reason from accepted findings about both sets of offences to a conclusion that the offences were not coincidental, rather than from the similarity of the accounts to the credibility of the witnesses, constitutes a miscarriage of justice where the jury receives no sensible instruction on how the evidence may be used (at [86]-[100]).

  • Where a discharged juror was, on the available evidence, a dissentient, and the remaining jurors returned verdicts very shortly after the discharge, a court cannot be satisfied that all verdicts were unanimous simply because no audible objection was recorded when the foreperson delivered them; equivocal evidence is insufficient to exclude a risk of substantial miscarriage of justice under s 53C of the Jury Act 1977 (NSW) (at [151]-[155]).

  • The Court of Criminal Appeal firmly rejected the argument that a discharged juror's perceived racial background could form the basis for an inference that he would have supported the appellant and that his absence thereby created a miscarriage of justice; such a submission was incompatible with the direction given to the jury to act impartially (at [131]-[132]).

  • The admissibility of coincidence evidence and the adequacy of the jury direction on that evidence are distinct questions: evidence may be properly admitted under s 98 and yet a misdirection as to how the jury may use it can independently constitute a ground for quashing a conviction (at [94]-[100]).

Legislation and Cases Referenced

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

Cases
- A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174
- BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- DSJ v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9
- Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40
- Haile v R [2022] NSWCCA 71
- Hofer v R (2021) 95 ALJR 937; [2021] HCA 36
- House v The King (1936) 55 CLR 499
- Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7
- Phan v R [2018] NSWCCA 225
- The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
- R v Ceissman [2010] NSWCCA 50
- R v Gale; R v Duckworth [2012] NSWCCA 174
- R v Hiba Cornell [2015] NSWCCA 258
- R v MR [2013] NSWCCA 236
- R v Roberts [2005] 1 Qd R 408; [2004] QCA 366
- R v WRC (2002) 130 a Crim 89; [2002] NSWCCA 210
- Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136
- Versi v R [2013] NSWCCA 206