TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:No. CA 4 of 2016 (21405513)
DELIVERED: 13 April 2017
HEARING DATES: 21 July 2016
JUDGMENT OF: GRANT CJ, KELLY and BARR JJ
APPEALED FROM: BLOKLAND J
CATCHWORDS:
CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – OFFENCES AGAINST THE PERSON – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS
Whether Crown’s evidence at its highest disclosed indecency in the relevant sense – whether disclosed an offence against s 132(2)(a) of the Criminal Code – necessary to prove either that the dealing was indecent in itself, or that it was committed in circumstances of indecency – offence was committed in circumstances of indecency if touching the complainants was sexually motivated – appellant’s intention or motive was relevant – appeal dismissed.
CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – OFFENCES AGAINST THE PERSON – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS
Whether failure to explain the significance of the appellant’s assertion that the motive or purpose of his conduct was his duty as a teacher – whether failure properly to direct the jury of need for satisfaction beyond reasonable doubt that the appellant’s purpose or motive was to obtain sexual gratification – directions given to jury inadequate – failed to explain significance of the motive or purpose of the appellant’s conduct – directions in error in drawing attention to the defence of justification under s 27(p) of the Criminal Code – appeal allowed.
CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – OFFENCES AGAINST THE PERSON – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS
Whether tendency evidence erroneously admitted into evidence – significant probative value within the meaning of s 97(1)(b) of the ENULA – evidence identified in Crown notice described conduct not overtly indecent or sexualised – conduct not of a particular kind of act or of a particular kind of act committed in particular circumstances – appeal allowed.
CRIMINAL LAW – APPEAL AND NEW TRIAL
Whether integrity of the jury’s deliberations compromised by unlawful or improper conduct and irregularities – whether enquiry required to determine if miscarriage of justice – general rule of the administration of criminal justice that once trial has been determined by an acquittal or conviction and the jury discharged evidence of a juror or jurors as to the deliberations of the jury is not admissible to impugn the verdict – exclusion does not operate in relation to evidence extrinsic to the jury’s deliberations or to unlawful coercion – unnecessary to decide.
CRIMINAL LAW – APPEAL AND NEW TRIAL
Conviction quashed – whether interests of justice require new trial – whether admissible evidence sufficiently cogent to justify new trial – whether any circumstances which might render it unjust to the accused to make him stand trial again – public interest in the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
BD v The Queen [2017] NTCCA 2
Case
[2017] NTCCA 2
Decision Date
CaseChat Overview and Summary
The case of BD v The Queen concerned an appeal against conviction for offences against the person, specifically relating to alleged indecency. The appellant, BD, was convicted by a jury, and the appeal was heard by Grant CJ, Kelly, and Barr JJ. The central dispute revolved around the admissibility and proper direction to the jury concerning certain evidence presented by the Crown.
The legal issues before the court included whether the Crown’s evidence, at its highest, disclosed indecency in the relevant sense for the purposes of section 132(2)(a) of the Criminal Code, requiring proof of either the dealing being indecent in itself or committed in circumstances of indecency, which involved sexual motivation. Further issues concerned whether the trial judge adequately directed the jury on the need for satisfaction beyond reasonable doubt regarding the appellant's motive or purpose, particularly in relation to his assertion of duty as a teacher, and whether tendency evidence was erroneously admitted due to lacking significant probative value under section 97(1)(b) of the Evidence (New South Wales) Uniform Legislation Act (ENULA). The court also considered whether the integrity of the jury's deliberations was compromised and, if so, whether a new trial was required in the interests of justice.
The court allowed the appeal on the grounds that the directions given to the jury regarding the appellant's motive or purpose were inadequate, failing to explain the significance of his assertion of duty as a teacher and potentially misdirecting the jury by drawing attention to the defence of justification under section 27(p) of the Criminal Code. Additionally, the court found that certain tendency evidence was erroneously admitted as it did not possess significant probative value within the meaning of section 97(1)(b) of the ENULA, as the conduct described was not overtly indecent or sexualised and lacked the necessary particularity. The court quashed the conviction.
Given the quashed conviction, the court considered whether the interests of justice required a new trial. It concluded that a new trial was not warranted due to factors including the time already spent in custody, the appellant no longer being employed as a teacher, and the potential for prejudice by delay and adverse consequences from a retrial.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The course which follows appropriately from that allowance is discussed further below, and after the remaining grounds of appeal have been addressed.Tendency evidence – significant probative value As already described, the third ground of appeal is that certain of the tendency evidence was erroneously admitted into evidence by the trial judge because it did not and could not as a matter of law have any or any significant probative value within the meaning of s 97(1)(b) of the ENULA. Section 97 of the ENULA provides for the admissibility of tendency evidence subject to the requirements of notice and significant probative value. It provides:The tendency rule(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.(2) Subsection (1)(a) does not apply if:(a)the evidence is adduced in accordance with any directions made by the court under section 100; or(b)the evidence is adduced to explain or contradict tendency evidence adduced by another party.Note for section 97The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions. The Dictionary in the ENULA defines “probative value” of evidence to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. The general operation of the provision was described in R v Grant in the following terms:[61][25] The regime for the admission of tendency evidence under the ENULA replaces the common law rules in relation to “propensity” or “similar fact” evidence. The common law rules in relation to this type of evidence no longer govern (but may inform) the assessment of the probative value and admissibility of tendency evidence under the ENULA. A number of matters warrant some preliminary comment in this context.[26] First, the common law generally required a “striking similarity” or “underlying unity” between the similar facts in order for them to qualify as admissible [see, for example, Pfennig v The Queen (1995) 182 CLR 461 at 485; HML v The Queen (2008) 235 CLR 334]. The ENULA creates its own regime for the admission of tendency evidence. The existence of “similarity” is not a necessary requirement for tendency evidence. That said, the consideration of similarity remains a guide in determining in some circumstances whether tendency evidence has sufficient probative value to pass the test for admissibility under the statutory regime [R v Fletcher (2005) 156 A Crim R 308, [60]. See also AE v The Queen [2008] NSWCCA 52; R v Milton [2004] NSWCCA 195; R v Harker [2004] NSWCCA 427; R v F (2002) 129 A Crim R 126; R v WRC (2002) 130 A Crim R 89]. It may also be noted that the requirement for striking similarity or underlying unity remains important to the question of admissibility in cases where the identity of the offender is in issue, but is less significant in cases where the accused is known to the complainant and no issue of identity arises. [27] Secondly, propensity and similar fact evidence is excluded under the common law where there is “a rational view of the evidence that is inconsistent with the guilt of the accused” [Hoch v The Queen (1988) 165 CLR 292 at 296]. In making that determination the trial judge was required to apply the same test as a jury. Where there was a rational view of the evidence consistent with the accused’s innocence, the probative force of the evidence was considered to be automatically outweighed by its prejudicial effect. The ENULA introduces a legislative formulation for balancing probative value against prejudicial effect which displaces the “no rational view” test [R v Ellis (2003) 58 NSWLR 700 at [89]. Under that formulation, the probative value is to be assessed by the trial judge on the assumption that the jury will accept the evidence, thus precluding any consideration of whether the evidence is credible or reliable for that purpose [IMM v The Queen (2016) 90 ALJR 529 at [42], [43], [49]-[50] and [52] per French CJ, Kiefel, Bell and Keane JJ. It should be noted in this context that proceeding on the assumption the jury will accept the evidence does not preclude the trial judge from determining that the circumstances surrounding the evidence render it too weak to have any probative force.].[28] Thirdly, under the common law it was necessary to exclude the possibility of contamination, collusion, concoction or other influence before propensity and similar fact evidence is admitted. Under the ENULA the possibility of concoction will not automatically or necessarily deprive propensity evidence of the requisite level of probative value to qualify it for admission [IMM v The Queen (2016) 90 ALJR 529 at [59] per French CJ, Kiefel, Bell and Keane JJ]. That notion notwithstanding, there may be objective facts and circumstances surrounding a particular piece of propensity evidence which renders it too weak or unconvincing to have any real probative force.