R v Gregory-Roberts

Case [2016] NSWCCA 92


Court of Criminal Appeal
Supreme Court

New South Wales

Case Name: 

R v Gregory-Roberts

Medium Neutral Citation: 

[2016] NSWCCA 92

Hearing Date(s): 

26 April 2016

Date of Orders:

18 May 2016

Decision Date: 

18 May 2016

Before: 

McCallum J at [1]
R A Hulme J at [2]
Schmidt J at [3]

Decision: 

(1)   The appeal be upheld.
(2)   The rulings of 18 and 24 November 2015 be set aside.
(3)   Adjudge that the complaint evidence of the complainant and the three witnesses, MG, RB and SS, and the evidence of the four pretext telephone conversations are admissible.
(4)   Otherwise remit the matter to Craigie SC DCJ for further hearing.

Catchwords: 

CRIMINAL LAW – Crown appeal – s 5F(3A) Criminal Appeal Act 1912 (NSW) – evidence – exclusion of evidence weakened Crown case – whether complaint evidence and evidence of pretext conversations admissible – whether error established in excluding evidence under 66 of the Evidence Act 1995 (NSW) – whether error established in excluding evidence of pretext conversations under s 135 and s 137 of the Evidence Act 1995 (NSW) – appeal upheld – rulings set aside – evidence admissible – matter remitted for further hearing

Legislation Cited: 

Evidence Act 1995 (NSW)
Criminal Appeal Act 1912 (NSW)
Interpretation Act 1987 (NSW)

Cases Cited: 

Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507
House v R [1936] HCA 40; (1936) 55 CLR 499
IMM v The Queen [2016] HCA 14
Lam v Beesley (1992) 7 WAR 88
R v Ali [2015] NSWCCA 72
R v BD (1997) 94 A Crim R 131
R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238
R v Centraco [2005] NSWCCA 11
R v Cook [2004 NSWCCA 52
R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363
R v XY [2010] NSWCCA 181; (2010) 79 NSWLR 629
R v Nguyen [2010] NSWCCA 97
R v Shamouil [2006] NSWCA 112; (2006) 66 NSWLR 228
R v Taranto [1999] NSWCCA 396
R v Yates [2002] NSWCCA 520
Rolfe v R [2007] NSWCCA 155; (2007) 173 A Crim R 168
SKA v Regina [2012] NSWCCA 205
Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463

Category: 

Principal judgment

Parties: 

Regina
John Gregory-Roberts

Representation: 

Counsel:
P Ingram SC with E Balodis (Crown)
P Strickland SC (Respondent)
 
Solicitors:
C Hyland – Solicitor for Public Prosecutions (Crown)
A Davey – Unsworth Legal Pty Ltd (Respondent)

File Number(s): 

2012/161848

Publication Restriction: 

Non-publication of any information or material that may lead to the identification of the complainants (Children (Criminal Proceedings) Act 1987 (NSW), s 15A).

Decision under appeal: 

 Court or Tribunal: 

District Court of NSW

  Jurisdiction: 

Criminal Law

  Date of Decision: 

18 November 2015

  Before: 

Craigie SC DCJ

  File Number(s): 

15/15/001515

Judgment

  1. McCALLUM J: I agree with Schmidt J.

  2. R A HULME J: I agree with Schmidt J.

  3. SCHMIDT J: The respondent has been charged with six indecent assault offences alleged to have been committed between 30…

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AGLC
R v Gregory-Roberts [2016] NSWCCA 92
Case
[2016] NSWCCA 92
Decision Date

CaseChat Overview and Summary

In the case of R v Gregory-Roberts, the Crown appealed against the decision of the District Court, which had excluded certain evidence that was deemed to have weakened the Crown's case. The nature of the dispute involved the admissibility of complaint evidence and evidence of pretext conversations, which were initially excluded under sections 135 and 137 of the Evidence Act 1995 (NSW). The Crown contended that these exclusions amounted to an error warranting an appeal under section 5F(3A) of the Criminal Appeal Act 1912 (NSW).

The primary legal issues before the court were whether the exclusion of complaint evidence and evidence of pretext conversations constituted an error under sections 66, 135, and 137 of the Evidence Act 1995 (NSW). The court had to determine whether the probative value of this evidence was substantially outweighed by the risk of unfair prejudice to the accused. The Crown argued that the exclusion of such evidence had weakened the case, making it necessary to reassess the admissibility based on the criteria established by the Evidence Act. The respondent, on the other hand, maintained that the exclusions were justified due to potential prejudice and confusion.

The court found that the trial judge had erred in excluding the complaint evidence and the evidence of pretext conversations. The exclusion of the complaint evidence was deemed inappropriate as it was relevant to the probability of the existence of facts in issue, and its probative value was not outweighed by the risk of unfair prejudice. Similarly, the pretext conversations, while ambiguous, were relevant and should have been considered by the jury to assess credibility and reliability. The court held that the trial judge had not correctly applied the statutory tests for exclusion under sections 135 and 137 of the Evidence Act, leading to an unfair prejudice to the Crown's case. Consequently, the appeal was upheld, and the rulings were set aside.

The court ordered that the evidence in question be deemed admissible and directed that the matter be remitted for a further hearing, allowing the trial judge to reconsider the evidence in light of the court's findings. This decision underscores the importance of correctly applying the statutory criteria for the admissibility of evidence in criminal proceedings, particularly when it pertains to the probative value versus the risk of unfair prejudice.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Sections 135 and 137 provide:“135 General discretion to exclude evidenceThe court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:(a) be unfairly prejudicial to a party, or(b) be misleading or confusing, or(c) cause or result in undue waste of time.…137 Exclusion of prejudicial evidence in criminal proceedingsIn a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.” As has oft been discussed, while s 135 gives a discretion, s 137 requires a balancing of the probative value of the evidence against the danger of unfair prejudice to the accused. If that process results in a conclusion that its probative value is outweighed by the danger of unfair prejudice, the Court has no discretion and must refuse to admit the evidence. The complaint evidence is sought to be tendered for the purpose of proving the acts charged. There is no question that under s 55 of the Evidence Act, the complaint evidence is relevant, going as it does to the assessment of the probability of the existence of facts in issue. Under s 66, it will be received as evidence of the facts in issue and will also be relevant to an assessment of the complainant’s credibility and reliability (see IMMv The Queen [2016] HCA 14 at [71] - [72]). In assessing the probative value of the complaint evidence, for the purpose of either s 135 or s 137, account cannot be taken of its honesty or reliability. Whether it is accepted by the jury will depend on matters such as the time when complaint was made, what was said and to whom. At this point, however, it must be assessed on the assumption that it is accepted (see IMM at [52] - [58]). If accepted, the complaint evidence is clearly of real probative value, given that it establishes complaint about conduct which became the subject of the charges, made to school friends, many years before the complainant approached the police. The risks to which the respondent pointed as establishing unfair prejudice, was that the evidence would be misused by the jury as context or tendency evidence, or evidence of general sexual misconduct or guilty passion. That was said to have particular arisen in the case of RB and SS. The reason for excluding the evidence was said by his Honour to be expected disparity between the complainant's accounts and RB’s evidence. That, however, goes to the respective reliability of their evidence, a matter for the jury, not to the question of unfair prejudice. In relation to SS, his Honour considered the ambiguity of her statement to be a basis for its exclusion. Again, that was a matter for the jury. His Honour also took into account that the complainant gave no evidence of making complaint to SS, but that was of limited significance, given the provisions of s 66 earlier discussed. His Honour did not deal with MG’s evidence, which was that when discussing another school child, outside a classroom, the complainant said that she had been molested. While that was a succinct summary of what is now alleged against the respondent, it accords with what the complainant says happened to her.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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