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Court of Criminal Appeal 9 June 2023

Waldron v R

[2023] NSWCCA 128

Assault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION TENDENCY EVIDENCE PROPER DIRECTIONS DIRECTIONS APT TO REVERSE ONUS OR PROOF APPLICATION OF PROVISO

Citation: Waldron v R [2023] NSWCCA 128
Court: NSW Court of Criminal Appeal
Date: 9 June 2023
Judges: Button J, Hamill J (primary reasons), Sweeney J

Background

The appellant, Ms Waldron, was convicted after a jury trial in the District Court at Newcastle on one count of wounding her former partner with intent to cause grievous bodily harm. The incident occurred on 19 July 2020 at a residential property in Wallsend, where the complainant had come to collect mail. The prosecution alleged Ms Waldron stabbed the complainant with scissors in an unprovoked attack, inflicting a serious chest wound.

Ms Waldron's defence at trial was self-defence. She did not give evidence herself, instead relying on material from the prosecution case, including her own recorded police statements. Critically, she also tendered agreed facts containing tendency evidence about the complainant. That tendency evidence was admitted by the trial judge as having significant probative value to the self-defence issue.

The jury convicted Ms Waldron on the primary count, and she was sentenced to three and a half years' imprisonment with a two-year non-parole period. Her appeal to the Court of Criminal Appeal challenged neither the admissibility of the tendency evidence nor the sentence itself, but focused solely on the directions the trial judge gave the jury about how to use that evidence.

  • Whether the trial judge erred in directing the jury that it should not draw an inference that the complainant had a tendency to act in a particular way unless that inference was the only rational inference available (Ground 1).
  • Whether the trial judge erred in directing the jury that it could take tendency evidence into account only in considering whether it was "more likely than not" that the complainant acted in the way alleged (Ground 2).
  • Whether, despite those errors, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applied, such that no substantial miscarriage of justice actually occurred and the appeal should nonetheless be dismissed.

Decision

The prosecution conceded both grounds of appeal, and the Court upheld them. On Ground 1, the Court found there was no basis for requiring the jury to exercise special caution before drawing inferences from tendency evidence, and no requirement that a tendency be the only rational explanation before it could be accepted. Tendency evidence does not carry an onus of proof of any particular standard, and grafting a "only rational inference" requirement onto the tendency direction wrongly analogised it to circumstantial evidence reasoning. The Court applied The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56 and Basanovic v R (2018) 100 NSWLR 840.

On Ground 2, the direction that the jury could use tendency evidence only if it was "more likely than not" that the complainant acted in the way alleged was equally erroneous. That formulation, which appears to have arisen from the inadvertent addition of the words "than not" to the draft directions, effectively imposed a positive burden on the accused. There is no onus on an accused person to establish a complainant's tendency. The direction was apt to reverse the proper allocation of the burden of proof.

Turning to the proviso, the Court applied Weiss v The Queen (2005) 224 CLR 300, which requires the appellate court to be persuaded that the evidence properly admitted at trial proved the appellant's guilt beyond reasonable doubt before the proviso can operate. The Court was not so persuaded. The prosecution's case rebutting self-defence was not overwhelming, and Ms Waldron's account was not glaringly improbable. The Court had not seen the witnesses, the evidence was conflicting, and the misdirections directly infected the jury's consideration of the central issue of self-defence.

The Court declined to determine whether the errors were so fundamental that the proviso could not apply as a matter of law. It was sufficient to conclude, as a matter of fact and assessment of the whole case, that self-defence had not been excluded beyond reasonable doubt and that a substantial miscarriage of justice could not be ruled out.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Conviction quashed.
  • New trial ordered.
  • Matter listed for call-over on 8 June 2023 at the District Court sitting in Newcastle.
  • The commencement date of the aggregate sentence imposed at Toronto Local Court on 28 March 2022 varied from 14 March 2024 to 14 March 2022, pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Key Takeaways

  • Tendency evidence adduced by an accused person carries no particular standard of proof. A jury direction requiring that tendency evidence be the "only rational inference" before it can be accepted wrongly imports circumstantial evidence reasoning into a distinct area of the law of evidence.
  • Where tendency evidence is relied upon by an accused, a direction framing its use around a "more likely than not" standard is liable to reverse the burden of proof and constitutes a material misdirection.
  • Under the Weiss proviso test, an appellate court must be affirmatively satisfied that the properly admitted evidence established guilt beyond reasonable doubt. Where self-defence remains a live issue on the evidence and the Crown case is not overwhelming, the proviso will not be applied.
  • The Court of Criminal Appeal declined to resolve the broader question of whether errors in tendency directions could ever be so fundamental as to prevent the proviso from operating at all, treating that question as unnecessary given the factual outcome.
  • Conflicting evidence and the absence of witness observation by the appellate court are relevant factors weighing against application of the proviso, particularly where the misdirections directly affected the key issue at trial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 418, 419 (self-defence)
- Criminal Appeal Act 1912 (NSW), s 6(1) (proviso)
- Evidence Act 1995 (NSW), s 97(1)(a) (tendency evidence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59(1)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
- Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59
- Kalbasi v State of Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36
- Awad v The Queen; Tambakakis v The Queen (2022) 96 ALJR 1082; [2022] HCA 36
- Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
- R v Basha (1989) 39 A Crim R 337
- Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6
- Peacock v The King (1911) 13 CLR 619; [1911] HCA 66
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7