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Court of Criminal Appeal 9 June 2000

Regina -v- HJS [2000] NSWCCA 205 revised - 29

[2000] NSWCCA 205

Sexual offencesDomestic & family violence
CRIMINAL LAW NEVERTHELESS NO MISCARRIAGE OF JUSTICE.

Citation: Regina v HJS [2000] NSWCCA 205
Court: NSW Court of Criminal Appeal
Date: 9 June 2000
Judge(s): Spigelman CJ, Ireland J, Simpson J

Background

The appellant was convicted in the Parramatta District Court on ten counts of sexual assault against his four daughters, all of whom were under the age of 16 at the relevant times. The offences spanned several years and involved conduct in the family home and on at least one occasion in a motor vehicle. The charges were brought under multiple provisions of the Crimes Act 1900 and carried maximum penalties ranging from five years' penal servitude to penal servitude for life.

The appellant sought leave to appeal against his convictions on a number of grounds, raising questions about the conduct of the trial, the admissibility of certain evidence, and the adequacy of the trial judge's directions to the jury. No challenge was made to the sentences imposed.

  • Whether the trial judge erred in refusing an application for separate trials on each count
  • Whether the erroneous introduction of an unrelated complainant's name constituted a miscarriage of justice
  • Whether the Crown was entitled to lead evidence in reply
  • Whether the trial judge was obliged to direct the jury on the consumption of alcohol, regardless of the views of counsel
  • Whether complaint evidence was wrongly admitted under s 66 of the Evidence Act 1995, and if so, whether that admission produced a miscarriage of justice
  • Whether the complaint evidence might alternatively have been admitted under s 108(3) of the Evidence Act 1995, and whether different directions would have been required

Decision

The Court dismissed each ground of appeal. On the application for separate trials, the Court found no error in the trial judge's refusal. The joinder of counts relating to the four daughters was appropriate given the overlapping factual context, and no unfairness resulted from the counts being tried together.

The erroneous reference to the name of an unrelated complainant during the trial was treated as an irregularity rather than a fatal defect. The Court found the reference did not produce a miscarriage of justice in the circumstances.

On the complaint evidence, Simpson J (with whom Spigelman CJ agreed) found that the evidence had been wrongly admitted under s 66 of the Evidence Act 1995, which governs the use of prior representations as evidence of the facts they assert. The Court also observed that it was not certain the evidence would have been admitted under s 108(3) of the same Act, which relates to the rehabilitation of credibility, had the correct legal analysis been applied at trial. Even if admitted under s 108(3), the directions given to the jury would have needed to be framed differently.

Despite those errors, the Court concluded that no miscarriage of justice had occurred. The complaint evidence was vague and unspecific, and was not directly tied to any of the specific charges. The Court regarded the more compelling evidence as being the direct accounts of repeated abuse given by each of the four daughters, the accounts of three of them having confronted the appellant directly, and his incriminating responses to those accusations.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an evidentiary error at trial, even one concerning the admissibility of complaint evidence under the Evidence Act 1995, does not necessarily produce a miscarriage of justice where the improperly admitted evidence was peripheral to the central body of evidence.
  • A trial judge carries an independent duty to direct the jury on the significance of alcohol consumption where that is relevant, and that duty exists regardless of whether counsel request such a direction.
  • Under s 66 of the Evidence Act 1995, complaint evidence must meet the requirements governing prior representations tendered as evidence of the facts they assert; failure to apply the correct test renders the admission erroneous.
  • Where complaint evidence is vague, unspecific, and unconnected to particular charges, a court evaluating miscarriage of justice may find that its admission, though wrong, did not materially affect the outcome when weighed against strong direct evidence from multiple complainants.
  • No error was established in the trial judge's refusal to order separate trials where the counts arose from a common factual setting involving members of the same family over an overlapping period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 67, 72, 76
- Evidence Act 1995 (NSW), ss 66, 108(3)

Cases:
- Maric v The Queen (1978) 52 ALJR 631
- R v Marsland (NSWCCA, unreported, 17 July 1991)
- R v Oliviera (NSWCCA, unreported, 26 November 1993)
- R v Rich (1998) 102 A Crim R 165
- Palmer v The Queen (1998) 193 CLR 1
- R v Baker (1999) NSWCCA 277
- Tillick v The Queen (1981) 147 CLR 565
- R v Stokes and Difford 51 A Crim R 25
- R v Clough (1992) 28 NSWLR 396
- Graham v R [1998] HCA 61; 195 CLR 606
- R v H (1997) 92 A Crim R 168
- R v BD (1997) 94 A Crim R 131
- R v Shaw (1952) 85 CLR 365
- R v Lawrence (1981) 38 ALR 1
- R v Killick (1981) 147 CLR 565
- R v Chin (1985) 157 CLR 671
- R v Chaney (1991) 99 ALR 360