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Court of Criminal Appeal 24 April 2024

SA v R

[2024] NSWCCA 50

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION ADMITTED AS CONTEXT EVIDENCE AT TRIAL WHERE PROPER ANTI TENDENCY DIRECTIONS WERE GIVEN

Citation: SA v R [2024] NSWCCA 50
Court: NSW Court of Criminal Appeal
Date: 24 April 2024
Judge(s): Ward P, Davies J, Garling J

Background

The appellant was the older brother of the complainant and was convicted by a jury of three counts: indecent assault, aggravated sexual intercourse without consent, and unlawful sexual touching. The offending occurred between 2015 and 2019 when the complainant was aged between 12 and 17 years. The most serious count involved the appellant digitally penetrating the complainant while she was face-down on her bed, screaming and trying to escape.

In her first police statement, the complainant described earlier incidents of abuse, including an act of fellatio performed on the appellant when she was approximately nine years old, followed by a threat to stay silent. The Crown sought to lead this material as context evidence, relevant to explaining the complainant's continuing fear of the appellant and her delay in reporting the offending.

At trial, counsel for the appellant objected to the portions of the complainant's statement describing the fellatio. The trial judge admitted the evidence, concluding that it was not of greater gravity than the charged offences, that it explained the complainant's fear and delay, and that any prejudicial effect could be addressed through appropriate jury directions. The appellant appealed his conviction on the single ground that the trial judge erred in admitting those paragraphs.

  • Whether the trial judge erred in admitting context evidence describing an act of fellatio when the complainant was approximately nine years old
  • Whether the trial judge, in applying the balancing test under s 137 of the Evidence Act 1995 (NSW), failed to give adequate weight to the complainant's young age at the time of that earlier incident
  • Whether, in respect of portions of the context evidence to which no objection was taken at trial, the appeal court could consider a ground that was not raised below
  • Whether any miscarriage of justice resulted from the admission of the evidence

Decision

The Court dismissed the appeal, with Davies J writing the principal judgment and Ward P and Garling J agreeing. On the central argument that the trial judge failed to account for the complainant's young age when assessing the gravity of the fellatio incident, the Court found this submission had not been put to the trial judge at first instance. It is not open to a party on a conviction appeal to run a different case from the one argued at trial.

In relation to portions of the context evidence to which no objection was taken at trial, r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applied. Where no objection was taken, s 137 of the Evidence Act was not engaged at trial, and leave to raise the point on appeal was refused.

As for the portions that were the subject of objection at trial, the Court found the trial judge had properly applied the s 137 balancing exercise, even if not using that precise terminology. Her Honour weighed the gravity of the fellatio incident against the gravity of the charged offences, particularly the digital penetration in count 2, and correctly concluded the latter was no less serious. The risk of the jury misusing the evidence was addressed by anti-tendency directions given during the trial and in the summing-up, the adequacy of which the appellant did not dispute.

The Court concluded that no miscarriage of justice had occurred, and the appeal ground was rejected.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A conviction appeal is not the appropriate vehicle for advancing an argument that was not put to the trial judge at first instance; the Court of Criminal Appeal confirmed it will not entertain a materially different case from the one run at trial.
  • Under s 137 of the Evidence Act 1995 (NSW), evidence must be excluded if its probative value is outweighed by the danger of unfair prejudice; where no objection is taken to evidence at trial, that provision is not engaged and leave is required before the point can be raised on appeal.
  • In assessing whether context evidence was unfairly prejudicial, the trial judge's approach of comparing the gravity of the uncharged act with the gravity of the counts on the indictment was confirmed as an appropriate method of determining whether the evidence risked inflaming or diverting the jury.
  • Properly given anti-tendency directions can be a sufficient safeguard against the risk that a jury will misuse context evidence, provided no challenge is raised to their adequacy.
  • No miscarriage of justice arises from the admission of context evidence where the trial judge correctly applies the s 137 test and the jury is given appropriate limiting directions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61KC, 61M, 66A
- Evidence Act 1995 (NSW), s 137
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
- Flood-Smith v R [2018] NSWCCA 103
- Hamilton v The Queen (2021) 274 CLR 531; [2021] HCA 33
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- McIlwraith v R [2020] NSWCCA 274
- Perish, Anthony v R; Perish, Andrew v R; Lawton v R, Matthew v R (2016) 92 NSWLR 161; [2016] NSWCCA 89
- R v Bayden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v Blick [2000] NSWCCA 51; (2001) 111 A Crim R 326
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460