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11
Court of Criminal Appeal 24 November 2000

Regina v ATM [2000] NSWCCA 475 revised - 24

[2000] NSWCCA 475

Sexual offences
APPEAL AFTER CONVICTIONS SUMMING UP

Citation: Regina v ATM [2000] NSWCCA 475 revised - 24/11/2000
Court: NSW Court of Criminal Appeal
Date: 24 November 2000
Judge(s): Sully J, Whealy J, Howie J (reasons by Howie J)

Background

The appellant was convicted after a jury trial in the District Court on two counts of sexual intercourse with a child under 10 years, contrary to section 66A of the Crimes Act. The complainant was his stepdaughter, who was born in the Philippines and immigrated to Australia with her mother and the appellant in 1988. The first charge concerned conduct alleged to have occurred at Cabramatta in 1989, and the second concerned conduct at Carlton in 1990.

At trial, the complainant gave evidence of the two specific incidents giving rise to the charges, as well as a broader history of sexual misconduct by the appellant stretching from when she was four years old in the Philippines through to September 1992. This wider history was admitted as relationship evidence. The appellant was sentenced to minimum terms of two years imprisonment on each count, with additional terms of two years on each. There was no appeal against sentence.

Two grounds of appeal were pursued: first, that the verdicts were unreasonable and incapable of being supported; and second, that the trial judge failed to adequately direct the jury on how to use the relationship evidence.

  • Whether the verdicts were unreasonable and unable to be supported by the evidence at trial.
  • Whether the trial judge's directions and warnings to the jury regarding the relationship evidence were adequate.
  • Whether the deficiencies in the summing-up gave rise to a real risk of miscarriage of justice.

Decision

The Court of Criminal Appeal allowed the appeal and quashed the convictions on both grounds, entering verdicts of acquittal on each count.

On the relationship evidence ground, Howie J found that the trial judge failed to a very significant degree to direct and warn the jury on how to approach this evidence. Critically, the summing-up did not warn the jury against substituting the relationship evidence for the specific acts charged in the indictment. This warning was particularly important because some of the other alleged acts of misconduct were described with particularity and detail, creating a real risk that jurors might find those background allegations more plausible than the specific charged conduct and impermissibly treat them as a substitute basis for conviction.

The Court also criticised the failure of both counsel, Crown and defence, to bring the deficiency in the summing-up to the trial judge's attention. All of the relevant authorities on relationship evidence directions had been decided well before this trial. Howie J noted that the Crown carries a particular duty, when adducing this type of evidence, to ensure that its reception does not result in a miscarriage of justice, including ensuring that appropriate directions are sought and given.

Orders Made

  • Appeal allowed.
  • Convictions quashed.
  • Verdicts of acquittal entered on each count.

Key Takeaways

  • Where relationship evidence is admitted in a criminal trial, the trial judge must give the jury clear directions on the limited purposes for which that evidence may be used, including an explicit warning against substituting acts of background misconduct for the specific conduct alleged in the charges.
  • The risk of substitution is not merely theoretical where the relationship evidence involves conduct described with some particularity and detail; in such cases the direction takes on heightened importance and its omission can constitute a real risk of miscarriage of justice.
  • A failure by counsel on both sides to draw a deficiency in the summing-up to the trial judge's attention was criticised, as the relevant authorities were well-settled before the trial occurred.
  • The Crown carries a particular duty, not limited to the defence, to ensure that the admission of relationship evidence is accompanied by appropriate jury directions that guard against misuse of that evidence.
  • Under the principles affirmed by the Court of Criminal Appeal, an inadequate summing-up on relationship evidence can independently sustain an appeal against conviction, even where a separate ground of unreasonable verdict is also made out.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 38, 97, 101
- Crimes Act 1900 (NSW), s 66A

Cases
- Jones v The Queen (1989) 166 CLR 409
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- BRS v The Queen (1997) 191 CLR 275
- Gipp v The Queen (1998) 194 CLR 106
- R v Adam (1999) 47 NSWLR 267
- R v A.H. (1997) 42 NSWLR 702
- R v Beserick (1993) 30 NSWLR 510
- R v Tripodina (1988) 35 A Crim R 183
- R v Milat (SC(NSW), Hunt CJ at CL, unreported, 23 April 1996)
- R v Fraser (NSW Court of Criminal Appeal, unreported, 10 August 1998)
- R v Greenham [1999] NSWCCA 8
- R v R.N.S. [1999] NSWCCA 122
- R v A.N. [2000] NSWCCA 372
- R v Marsh [2000] NSWCCA 370
- R v Wickham (NSW Court of Criminal Appeal, unreported, 17 December 1991)