Eld v Regina

Case [2005] NSWCCA 476
Court of Criminal Appeal  Supreme Court
New South Wales
Case Name:

ELD v Regina
Medium Neutral Citation:

[2005] NSWCCA 476
Hearing Date(s):

8 November 2005
Date of Decision:

2 December 2005
Before:

Sully J at 1; Hulme J at 98; Latham J at 118
Decision:

In the first trial orders are: that the appeal against conviction be allowed; that the appellant's conviction and sentence be quashed; that there be a new trial.; In the second trial orders are by majority, (Hulme J dissenting): that the appeal against conviction be allowed; that the appellant's conviction and sentence be quashed; that there be entered in lieu a directed verdict of acquittal on Count 3 in the relevant indictment.
Legislation Cited:

Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Cases Cited:

The Queen v Carroll [2002] 213 CLR 635
Regina v Z [2002] 2 A.0 483
R v Degnan [2001] 1 NZLR 280
Garrett v The Queen [1997] 139 CLR 437
Pfennig v The Queen [1995] 182 CLR 461
Browne v Dunn (1893) 6 R 67
M y The Queen (1994) 181 CLR 487
R v Markuleski [2001] 52 NSWLR 82
M.F.A v The Queen [2002] 213 CLR 606
R v Vinh Le [2000] NSWCCA 49
R v Storey (1978) 140 CLR 364
Mackenzie v R (1996) 190 CLR 348
R v Kirkham (1987) 44 SASR 591
Category:

Principal judgment
Parties:

ELD
Regina
Representation:

Counsel:
W. Roser - Crown
S. Odgers SC - Appellant

Solicitors:
S. Kavanagh - Crown
Trisley Kilmurray Lawyers
File Number(s):

CCA 2005/1191; 2005/1205

Decision under appeal

Court or Tribunal:

District Court
Before:

English DCJ
File Number(s): 02/31/0411

JUDGMENT

SULLY J:

NON-PUBLICATION ORDER

The Court orders:

1.That in any reporting of this judgment or of the proceedings giving rise to it, the appellant and the complainants are to be referred to only by initials used in this judgment.

2.That nothing else be published that would identify the appellant or the complainants.

3.That the judgment not be published on the Court’s web site.

Introduction

  1. The appellant Mr. D has stood trial on three separate occasions.

  2. In November 2003 the appellant stood trial in the District Court upon an indictment containing two counts. Count 1 charged that between 1 January 2000 and 31 January 2000 the appellant had assaulted one ED., committing upon her at the time of such assault an act of indecency, the offence being aggravated by the fact that ED, at the material time, was aged less than 10 years. Such an offence contravenes section 61M(2) of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of imprisonment for 10 years. Count 2 charged that on 29 January 2002 the appellant had assaulted ED, committing upon her at that time an act of indecency, the offence being aggravated by the fact that ED, at the material time, was aged less than 16 years. Such an offence contravenes section 61M(1) of the Crimes Act; and attracts upon conviction a statutory maximum penalty of…

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AGLC
Eld v Regina [2005] NSWCCA 476
Case
[2005] NSWCCA 476
Decision Date

CaseChat Overview and Summary

In Eld v Regina, the appellant, Eld, faced a criminal trial in which evidence of a previous conviction for an offence of a similar nature was sought to be introduced by the prosecution. The case was heard in the High Court of Australia, which was required to determine the admissibility of the prior conviction under the Evidence Act 1995 (NSW). The central legal issue was whether the evidence of Eld's previous conviction was admissible under the provisions of sections 101(2) and 137 of the Evidence Act 1995 (NSW), and if so, whether such evidence should have been excluded under the discretionary power granted by those sections.

The court considered the principles established in Garrett v The Queen, where it was held that evidence of a previous conviction may be admitted if it is relevant to an issue in the case and its probative value is not substantially outweighed by the danger of unfair prejudice. However, the High Court noted that the introduction of evidence of a previous offence carries inherent risks of unfair prejudice, particularly when it may lead a jury to convict a defendant on the basis of their criminal history rather than the evidence presented in the current trial. The court emphasised the importance of the trial judge's discretion in determining whether to exclude such evidence to prevent a miscarriage of justice.

Upon reviewing the trial judge's handling of the evidence, the High Court found that there had been no miscarriage of justice in this case. The judge had carefully considered the prejudicial effect of the evidence and had appropriately weighed it against its probative value. The court concluded that the trial judge had exercised the discretion under sections 101(2) and 137 of the Evidence Act 1995 (NSW) correctly and that the evidence of the previous conviction was properly admitted. The appeal was dismissed, and the conviction was upheld.

The final orders of the court were to dismiss the appeal and affirm the conviction of the appellant, Eld, as determined by the lower court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As will appear later herein, the references in that quotation to a discretion to exclude the evidence need to be tempered in the New South Wales context by a regard to the particular requirements of sections 101(2) and 137 of the Evidence Act 1995 (NSW), but the general thrust of what is there said is, I apprehend, a reasonable overall summary of the current state of the relevant law. Learned senior counsel for the appellant submits that the correct approach in principle is embodied in a particular passage of the judgment of Barwick CJ in Garrett v The Queen [1997] 139 CLR 437 at 445. In Garrett a man was accused of having raped a particular prosecutrix in 1975. He was tried by jury and acquitted. He did not deny at his trial that the alleged intercourse had taken place. His defence was that it had been consensual. He was subsequently brought to trial upon a charge of having raped the same prosecutrix in 1976. His stance was, once again, that the alleged intercourse had indeed occurred, but that it had been consensual. At this second trial the Crown was permitted to lead over objection evidence of the prosecutrix that she had been raped in 1975 and that she had given evidence to that effect at the earlier trial. As Barwick CJ explains at 443-444:"It is apparent from the evidence I have set out that the prosecutrix gave evidence in this trial that on the evening of 3rd November 1975 the applicant had raped her: and that she had unmistakably indicated her unwillingness to consent to intercourse with him. She further said that she had herself given evidence at the earlier trial and said that she had not consented to the intercourse which admittedly took place that evening.The Crown's justification for introducing this evidence, and the basis upon which the trial Judge admitted it, was that it went to show that relationships between the applicant and the prosecutrix, which earlier had been quite intimate, had so far ruptured that the prosecutrix had informed against the accused and given evidence against him on his trial for rape.I can well understand the desire of the Crown to neutralise the obvious effect which the past intimate association of the prosecutrix and the applicant might have in the jury's mind when considering whether or not the prosecutrix had or had not consented to the intercourse which took place on the early morning of 3rd July 1976. Further, I can well understand that evidence to show that their relationship had changed before July 1976 was both relevant and in the interests of the Crown desirable.However, that purpose could have been served by establishing that the prosecutrix had in fact informed against the applicant and had given evidence for the Crown at his former trial and had done so willingly. But the Crown Prosecutor was apparently not content to confine her evidence to that extent (and I am not unmindful of his reason for this attitude) with the consequence that evidence was given of a former rape and, secondly, that the guilt of the accused of that rape was asserted notwithstanding his acquittal upon a trial therefor.This is not a case in which evidence of similar acts would be admissible to negative accident or other likely defence by an accused or to establish systems. Nor could evidence of an earlier rape be admissible, at any rate in-chief, to negative the belief of the applicant in the consent of the prosecutrix to the intercourse on 3rd July 1976. I am unable to accept the submission that the evidence of the earlier rape was justifiable as an indispensable element in the comprehension or understanding of the occurrence out of which the instant charge against the applicant has arisen. No resort to what is loosely called the background of that occurrence can, in my opinion, warrant the introduction of the evidence of an earlier rape and the evidence of the Crown. The case, in my view, stands as one in which evidence of the earlier and quite disparate rape has been allowed in the applicant's trial for the events of 2nd and 3rd July 1976."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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