Citation: Burns-Dederer v R [2023] NSWCCA 191
Court: NSW Court of Criminal Appeal
Date: 7 August 2023
Judges: Simpson AJA; Fagan J; Dhanji J
Background
The applicant stood trial in the District Court on two counts arising from a single alleged episode. Count 1 charged intentional sexual touching of a child aged between 10 and 16 years (s 66DB(a) Crimes Act 1900), and Count 2 charged sexual intercourse with a child aged between 10 and 14 years (s 66C(1)). Both counts concerned the same complainant, who was 11 years old at the time of the alleged offending, when the applicant was 20 years old.
The Crown alleged that on one evening during late 2018, while the complainant's parents were in bed, the applicant touched and then performed oral sex on the complainant while both were seated on a couch watching a film. The jury returned a unanimous guilty verdict on Count 1 (sexual touching) but acquitted on Count 2 (sexual intercourse).
The applicant sought leave to appeal his conviction on Count 1. The Crown had also relied on tendency evidence from a witness referred to as JR, a school friend of the complainant who described two separate incidents of sexual touching by the applicant in broadly similar circumstances.
Legal Issues
- Whether tendency evidence from JR was wrongly admitted under ss 97 and 101 of the Evidence Act 1995 (NSW), specifically whether it was of significant probative value and whether that value was substantially outweighed by the risk of unfair prejudice to the applicant.
- Whether the guilty verdict on Count 1 was unreasonable, or inconsistent with the acquittal on Count 2, given that both counts arose from the same alleged episode and involved the same complainant.
Decision
Tendency evidence (Ground 1)
Simpson AJA upheld the admission of JR's tendency evidence. JR described two incidents: on one occasion the applicant patted his genitals on the outside of his clothing while both were seated on a couch at JR's home, and on a second occasion the applicant moved his hand towards that area before stopping only when JR shouted his name. These circumstances closely mirrored the scenario alleged in Count 1. The court found that JR's account, if accepted, would significantly support the Crown's tendencies and that those tendencies were significantly probative of Count 1. The probative value was not substantially outweighed by any prejudicial effect, and no error or miscarriage of justice arose from the admission.
Unreasonable or inconsistent verdict (Ground 2)
The court rejected the argument that the guilty verdict on Count 1 was unreasonable or could not be reconciled with the acquittal on Count 2. Simpson AJA identified two substantial explanations for the different outcomes. First, the manner in which the complainant's allegation concerning Count 2 emerged was delayed, halting, and tentative. The complainant initially described the events as a dream, and the more serious allegation of oral sex came out only after some persistence from the interviewing detective. These features introduced a degree of doubt as to Count 2 that did not apply equally to Count 1. Second, JR's tendency evidence was admitted on Count 1 but the jury was directed it could not be used in relation to Count 2. The jury was therefore entitled to find stronger support for Count 1 while retaining a reasonable doubt about Count 2.
Fagan J agreed with those reasons and added that, having reviewed the trial record, he was personally left with no reasonable doubt concerning Count 1, and that the verdict was plainly open on the evidence. Dhanji J agreed with both Simpson AJA and Fagan J.
Orders Made
- Leave granted to appeal.
- Appeal dismissed.
Key Takeaways
- Under ss 97 and 101 of the Evidence Act 1995, tendency evidence from a single witness other than the complainant can properly be admitted where the conduct described is sufficiently similar in circumstances to the charged offence to carry significant probative value that is not substantially outweighed by the risk of prejudice.
- An apparently inconsistent verdict, where a jury convicts on one count and acquits on another arising from the same episode, does not automatically render the conviction unreasonable. A rational basis for different outcomes on each count satisfies the appellate standard.
- The delayed and tentative manner in which a complainant discloses allegations can legitimately create a greater degree of doubt on a particular count, even where the complainant's credibility is otherwise accepted on related counts.
- Where tendency evidence is admitted only in relation to specific counts, and the jury is properly directed to that effect, it provides an additional rational explanation for differential verdicts on connected charges.
- In dismissing this appeal, the Court of Criminal Appeal confirmed that the appellate review for unreasonable verdict requires the court to consider whether it was open to the jury, acting rationally, to return the verdict, not whether the appellate court would have reached the same conclusion.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) ss 66C, 66DB
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 8, Pt 4 Div 1A
- Criminal Appeal Act 1912 (NSW) ss 5, 6
- Evidence Act 1995 (NSW) ss 97, 101
- Jury Act 1977 (NSW)
Cases
- Hughes v The Queen (2017) 263 CLR 338
- McPhillamy v R [2018] HCA 52
- The Queen v Dennis Bauer (A Pseudonym) (2018) 266 CLR 56
- Pell v The Queen (2020) 268 CLR 123
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- SKA v The Queen (2011) 243 CLR 400
- TL v The King [2022] HCA 35
- IMM v The Queen (2016) 257 CLR 300
- The Queen v Baden-Clay (2016) 258 CLR 308
- MacKenzie v The Queen (1996) 190 CLR 348
- Festa v The Queen (2001) 208 CLR 593
- R v XY (2013) 84 NSWLR 363
- Bektasovski v R [2022] NSWCCA 246
- Taylor v R [2020] NSWCCA 355
- Papakosmas v The Queen (1999) 196 CLR 297
- Ford v R (2009) 201 A Crim R 451
- Elomar v R [2014] NSWCCA 303
- R v BD (1997) 94 A Crim R 131