AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 1 November 2024

Audish v R

[2024] NSWCCA 196

Sexual offences
EVIDENCE HEARSAY EXCEPTIONS ADMISSION APPEALS APPEAL AGAINST CONVICTION

Citation: Audish v R [2024] NSWCCA 196
Court: Court of Criminal Appeal (NSW)
Date: 1 November 2024
Judge(s): Stern JA (primary judgment); Davies J and Ierace J agreeing

Background

The applicant was convicted by jury of three counts of aggravated sexual intercourse without consent (in company) under s 61J(1) of the Crimes Act 1900 (NSW). The offending was alleged to have occurred on 15 October 2016 at a pizzeria owned by the applicant's brother. The complainant (AK) had been invited there by a 17-year-old employee with whom she was in a sexual relationship.

The Crown case was that the applicant had sexual intercourse with AK without her consent while in company (count 1), and that he participated in a joint criminal enterprise with two other persons (WS and RO, both under 18) who each also had sexual intercourse with AK without her consent (counts 2 and 3). AK was alleged to have been substantially intoxicated, unconscious, or asleep at the time.

None of the three key third parties (WS, FA, and RO) were called at trial. Hearsay evidence of their representations was admitted against the applicant under s 87(1)(c) of the Evidence Act 1995 (NSW). This included a police interview with WS, transcripts of intercepted telephone calls, and evidence of conduct by WS, RO, and FA during a chance encounter with AK in Parramatta weeks after the alleged offences. The applicant objected to most of this evidence. The common purpose relied upon for s 87(1)(c) was an alleged agreement to provide a false version of events to authorities, not a common purpose connected to the offences themselves.

  • Whether the trial judges (Sweeney DCJ on voir dire and Arnott DCJ at a pre-trial hearing) erred in admitting hearsay evidence of third-party representations against the applicant under s 87(1)(c) of the Evidence Act, where the common purpose relied upon (concealing the offending) was not a common purpose embraced by the offence charged.
  • Whether the trial judge's directions to the jury on the permissible use of this hearsay evidence were adequate.
  • Whether the verdicts of guilty on counts 1, 2, and 3 were unreasonable or unsupported by the evidence.

Decision

Section 87(1)(c) and the "common purpose" requirement. The Court held that in criminal proceedings, s 87(1)(c) of the Evidence Act must be construed as requiring the common purpose to be one "embraced by the offence charged." This follows earlier authority in R v Dolding and Higgins v R, and is consistent with the principle from Macdonald v R; Obeid v R that s 87(1)(c) operates against a background that presumes the common law co-conspirators rule. The Crown had argued that Higgins was plainly wrong. The Court rejected that contention. Because the Parramatta Conduct was admitted as furthering a common purpose to provide a false account to police (not a purpose connected to the sexual offences themselves), its admission under s 87(1)(c) was erroneous.

Miscarriage of justice and the proviso. The wrongful admission of the Parramatta Conduct caused a miscarriage of justice. There was a real chance the evidence affected the jury's verdicts. The Crown urged the Court to apply the proviso under s 6 of the Criminal Appeal Act 1912, but the Court declined. Considering the whole trial record, the Court was not satisfied that the evidence properly admitted at trial established the applicant's guilt beyond reasonable doubt.

Inadequate jury directions. The trial judge gave no direction identifying what representations by the third parties were established by the Parramatta Conduct, nor what admissions by the applicant were said to arise from it. As to the WS police interview and one of the call transcripts, the jury received no guidance at all on their limited permissible use (going only to the applicant's credibility). The inadequacy of these directions constituted a further miscarriage of justice. Leave was granted under r 4.15 notwithstanding that no objection had been raised to the directions at trial.

Unreasonable verdict. The Court found the verdict on count 1 was open to the jury. Given the small back area of the pizzeria and evidence consistent with WS and RO being nearby, the jury could conclude the applicant had intercourse with AK "in company." However, the verdicts on counts 2 and 3 were unreasonable. The Crown's case on those counts relied on conjecture: that a lookout was necessary, that the applicant was physically proximate when WS and RO had intercourse with AK, and that he thereby encouraged them. While the evidence was not inconsistent with these propositions, it did not exclude a reasonable doubt as to guilt.

Orders Made

  • The appeal against conviction was allowed in part.
  • Extension of time for filing the notice of appeal was granted.
  • Leave to appeal was granted to the extent required (including under r 4.15 for the directions ground).
  • The convictions on counts 2 and 3 were set aside on the basis that the verdicts were unreasonable.
  • The conviction on count 1 was also set aside because of the erroneous admission of the Parramatta Conduct and inadequate jury directions, which caused a miscarriage of justice.
  • (The headnote and judgment indicate the conviction appeal was allowed; the sentence appeal and any retrial orders would follow from this outcome.)

Key Takeaways

  • Under s 87(1)(c) of the Evidence Act, a "common purpose" relied upon to admit third-party hearsay against an accused must be one embraced by the offence charged. A purpose that is merely ancillary to, or arises after, the offending (such as an agreement to cover up the crime) does not satisfy this requirement, a principle firmly established by Higgins v R and confirmed by the Court of Criminal Appeal in this decision.

  • Evidence of a joint effort to concoct a false version of events may bear on credibility but cannot operate as an admission of guilt through s 87(1)(c) unless it furthers a purpose connected to the charged offence. The Court of Criminal Appeal drew a clear distinction between the admissibility pathway under s 87(1)(c) and the limited weight such evidence can carry at trial.

  • Where s 87(1)(c) evidence is tendered, specific and careful jury directions are essential. The jury must be told precisely what representations the evidence establishes, what admissions of the accused those representations are said to constitute, and the limited use (often only credibility) to which the evidence can be put. The Court of Criminal Appeal found that general references were insufficient.

  • In granting leave under r 4.15, the Court of Criminal Appeal held that appellate relief for a misdirection or non-direction remains available even in the absence of a contemporaneous objection by trial counsel, provided the error is sufficiently serious.

  • Circumstantial evidence that is merely "not inconsistent" with guilt is insufficient to exclude reasonable doubt. Applying this principle, the Court of Criminal Appeal distinguished between count 1 (involving the applicant's own direct conduct, upheld as a reasonable verdict) and counts 2 and 3 (requiring proof that the applicant encouraged others' conduct, found to be unreasonable verdicts).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61J
- Criminal Appeal Act 1912 (NSW), ss 5(a)–(c), 6
- Evidence Act 1995 (NSW), ss 57, 59, 81, 87(1)(c)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Key Cases:
- R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127
- Higgins v R [2020] NSWCCA 149
- Macdonald v R; Obeid v R; Obeid v R (2023) 112 NSWLR 402; [2023] NSWCCA 250
- Hofer v The Queen (2021) 274 CLR 351; [2