Price J at [1]; Adamson J at [183]; Hidden AJ at [196]
Decision:
(1) Grant leave to appeal under r 4 of the Criminal Appeal Rules (NSW) in respect of ground 1A. (2) Allow the appeal. (3) Quash the appellant’s convictions and sentence. (4) Subject to (5) below, order that there be a re-trial of the appellant. (5) Order that the appellant be tried separately on counts 1-20 from counts 21, 22, 23, 26, 28, 29, 30, 32, 33, 34 and 35. (6) Remit the matter for mention at the District Court at Sydney on 2 August 2019 at 9.30am.
Catchwords:
CRIME – Appeals – Appeal against convictions – sexual assault – multiple complainants – tendency evidence – whether error by judge in not severing counts of indictment – whether judge failed to identify the fact in issue – whether tendency evidence lead to establish identity of offender – cross-admissibility of complainant’s evidence – whether evidence was capable of proving appellant’s sexual interest had significant probative value – whether common features of sexual offending – whether location of offending relevant to establish tendency – whether probative value outweighed danger of bolstering identification evidence – whether danger of impermissible co-incidence reasoning – whether directions could reduce prejudicial effect – whether error in judge’s directions to jury – erroneous use of metaphor – whether final direction overcame erroneous metaphor – failure by counsel to seek re-direction – rule 4 – whether potential injustice – photo board identification – whether photo array suggested person in police custody – whether probative value of evidence was outweighed by danger of prejudice – whether error in not discharging jury – whether judge erred in not properly considering issues relevant to the application to discharge pursuant to s 53C(1)(a) Jury Act – whether error in moving to a majority verdict – whether error in failing to give Black direction
Legislation Cited:
Crimes Act 1900 (NSW) ss 61D, 61E, 61F, 78K Criminal Appeal Rules (NSW) r 4 Evidence Act 1995 (NSW) ss 97, 98, 101, 115, 135, 137, 138 Jury Act 1977 (NSW) ss 53A, 53B, 53C, 55F
[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.
Continue reading CA v The Queen
Sign in free to access the full text
Details
AGLC
CA v The Queen [2019] NSWCCA 166
Case
[2019] NSWCCA 166
Decision Date
CaseChat Overview and Summary
In the matter of the Crown (appellant) against the Queen (respondent), the appellant sought to appeal against convictions related to sexual assault charges involving multiple complainants. The High Court of Australia was tasked with examining the admissibility of tendency evidence, the propriety of severing certain counts in the indictment, and various other issues pertaining to the trial’s conduct. The appellant argued that the trial judge erred in not severing certain counts of the indictment and in not identifying specific facts in issue. The central question was whether the judge correctly admitted tendency evidence and if its probative value outweighed the prejudicial effect on the appellant.
The court considered whether the judge erred in admitting tendency evidence under s 97(1)(b) and s 101 of the Evidence Act. Specifically, the court examined whether the evidence had significant probative value in establishing the appellant’s tendency to commit the crimes and whether this probative value outweighed the danger of unfair prejudice. The court also scrutinized the judge’s directions to the jury, including whether an erroneous metaphor used by the judge could have prejudiced the jury. The appellant contended that the judge’s failure to properly consider certain issues relevant to the application to discharge the jury under s 53C(1)(a) of the Jury Act was an error. Additionally, the court assessed whether the judge erred in moving to a majority verdict and in failing to give a Black direction.
The court concluded that the judge did not err in admitting the tendency evidence as it had significant probative value and its admission did not unfairly prejudice the appellant. The court found that the directions given to the jury, despite containing an erroneous metaphor, did not prejudice the appellant to the extent that it would constitute a miscarriage of justice. The court held that the judge’s decision not to sever certain counts and not to discharge the jury was not an error. The court also determined that the failure to give a Black direction did not prejudice the appellant. Consequently, the appeal against convictions was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Section 95(1) provides:95 Use of evidence for other purposes(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.… Sections 97(1)(b) and 101(2) relevantly provide:97 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:…(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.…101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution...(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.… The “probative value” of evidence is also defined in the Dictionary:probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. The judge decided counts 36 and 37 involving TD and JH should be separated from counts 1-35 and that there should be separate trials for MM (count 38) and MJ (counts 39-40). After his Honour’s decision, two bases remained for the appellant’s contention that counts 1-20 (the JF and SF complaints) should be severed and tried alone. First, that the evidence of the club complainants was not admissible in proof of the JF and SF charges, and second, the evidence of JF was not admissible in proof of the club complainant charges. Before proceeding to deal with ground 1, it is important to observe that it is for this Court “itself to determine whether [tendency] evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was”.[12][12] Bauer [2018] HCA 40; (2018) 92 ALJR 846 at [61]. The argument on the cross-admissibility of the evidence before the judge was conducted before the High Court’s decision in Hughes. Ground 1(a) specifically refers to Hughes at [41] where the majority (Kiefel CJ, Bell , Keane and Edelman JJ) said:“The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.”