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9
Court of Criminal Appeal 29 June 2022

JS v R

[2022] NSWCCA 145

Sexual offences
CRIMINAL PROCEDURE TRIAL DIRECTIONS TO JURY CHIEF CREDIBILITY EVIDENCE EVIDENCE RE

Citation: JS v R [2022] NSWCCA 145
Court: NSW Court of Criminal Appeal
Date: 29 June 2022
Judges: Basten AJA (leading judgment); Hamill J and Dhanji J (agreeing)

Background

The applicant was convicted in the District Court on two counts of sexual intercourse with a child under ten years, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The victim was the applicant's nephew, who was between four and six years old at the time of the charged offending. Each charge related to an act of fellatio performed by the child on the applicant. The applicant was sentenced to five years and nine months' imprisonment with a non-parole period of two years, and did not challenge his sentence.

The applicant sought leave to appeal his convictions on two grounds. The first concerned the admission of complaint evidence and the directions the trial judge gave the jury about it. The second challenged the trial judge's directions on tendency evidence, which involved both an uncharged act of sexual touching and the cross-admissibility of each charged act as tendency evidence for the other.

A 2008 video-recorded interview of the victim (then aged four years and nine months) had been tendered as evidence-in-chief at trial, given pursuant to the vulnerable person provisions of the Criminal Procedure Act 1986 (NSW). Complaints were also made by the victim in 2019, some ten years after the alleged offending, to a school friend, his paternal grandmother, and a social worker. Those later complaints were admitted at trial without objection.

  • Whether the 2008 video-recorded interview of the victim was properly characterised as complaint evidence, direct evidence-in-chief, or both, and whether the trial judge's directions about it were correct
  • Whether the 2019 complaint evidence given by the school friend, grandmother, and social worker was admissible, particularly given the ten-year delay and its reference to conduct different from that charged
  • Whether leave was required under s 108(3) of the Evidence Act 1995 (NSW) to adduce the 2019 complaint evidence as credibility evidence re-establishing the victim's credibility
  • Whether the trial judge erred by directing the jury to consider the tendency evidence (uncharged acts and cross-admissible charged acts) collectively, rather than directing that each individual act must be proved beyond reasonable doubt before it could be used as tendency evidence

Decision

Ground 1: Complaint evidence

The Court found no error in the trial judge's handling of the 2008 video-recorded interview. Although the judge discussed it in the context of complaint evidence, he correctly directed the jury that it was relied upon both to support the victim's credibility and as a truthful account of the events described. The Court confirmed that this material was direct evidence-in-chief given by the person who suffered the conduct, admissible as to its truth and relevant to credit. No miscarriage of justice arose, a conclusion reinforced by the absence of any objection at trial.

On the 2019 complaints, the Court noted that no objection was taken to the admission of the evidence from the school friend, grandmother, or social worker. The admissibility question was accordingly addressed in the context of the jury directions given about that evidence. The Court accepted that the complaints were made approximately ten years after the alleged offending and described conduct, in at least one instance, different in nature from the acts charged. The Court considered whether leave was required under s 108(3) of the Evidence Act to admit this evidence as credibility evidence, but concluded that any error in the directions or admission caused no substantial miscarriage of justice, given the absence of objection and the overall conduct of the trial.

Ground 2: Tendency directions

The applicant argued that before any act (charged or uncharged) could be used as tendency evidence, the jury needed to be directed that it must first be satisfied of that act beyond reasonable doubt. The Court rejected this argument. Relying on The Queen v Bauer (2018) 266 CLR 56, the Court held that the requirement to be satisfied of the tendency to a high degree of probability does not demand that each underlying act be proved individually to the criminal standard before being used in the tendency reasoning. The directions given by the trial judge carefully conformed to the legal requirements and no error was established.

The Court acknowledged that tendency reasoning requires care and that juries need precise instructions to avoid using evidence improperly. However, it held that this concern does not, as a matter of law, import a requirement that each act be proved beyond reasonable doubt as a precondition to its use in the tendency analysis.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal dismissed

Key Takeaways

  • A video-recorded JIRT interview of a child victim, tendered as evidence-in-chief under the vulnerable person provisions of the Criminal Procedure Act 1986 (NSW), is direct evidence of the conduct described, not complaint evidence in the hearsay sense. It is admissible both as to its truth and as relevant to the complainant's credibility.

  • Where no objection is taken to the admission of complaint evidence at trial, the appellate court will assess any error in jury directions in that context. The absence of objection is a relevant consideration in determining whether any miscarriage of justice occurred.

  • Under The Queen v Bauer (2018) 266 CLR 56, tendency evidence in single-complainant sexual offence cases does not require the jury to be separately satisfied of each underlying act beyond reasonable doubt before that act contributes to the tendency reasoning. The Court of Criminal Appeal confirmed that principle applies to both uncharged acts and cross-admissible charged acts.

  • Complaints made approximately ten years after alleged offending, describing conduct different from the acts charged, may still be admitted and used in the tendency analysis, particularly where no objection is raised at trial.

  • In dismissing the appeal, the Court confirmed that careful jury directions conforming to established legal requirements will not constitute error merely because tendency reasoning involves a layered and complex analysis.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A(1)
- Criminal Procedure Act 1986 (NSW), s 161A; Sch 2 Pt 29
- Evidence Act 1995 (NSW), ss 66, 101A, 102, 108(3)
- Jury Directions Act 2015 (Vic), ss 61, 62
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
- HML v The Queen (2008) 235 CLR 334; [2008] HCA 16
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- Kassab (a pseudonym) v R [2021] NSWCCA 46