Steele v The Queen

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Decision restricted [2021] NSWCCA 74
Decision date: 21 April 2021
Before: Hoeben CJ at CL at [1]
Price J at [2]
Davies J at [3]
Catchwords:
CRIME – appeals – appeal against conviction – applicant charged with 23 offences – applicant found guilty by jury of 22 offences – offences of assault, indecent assault, indecency and one count of sexual intercourse without consent (count 7) – seven young male victims – indecent assault offending typically involved “sack whacking” – where tendency evidence was admitted on basis that it would be used only in respect of indecent assault counts – where directions of trial judge did not confine use of tendency evidence - whether trial judge erred in ruling that if applicant adduced evidence to prove he was of good character Crown would be permitted to adduce evidence in rebuttal – where rebuttal evidence was not relevant to the aspect of character evidence that was raised – whether trial judge erred in directing jury they could use applicant’s stated understanding of “sack whacking” as a lie evincing consciousness of guilt – where applicant’s answers wholly subjective and not established to be untruthful by evidence – whether verdict on count 7 is unreasonable and cannot be supported having regard to evidence – where inference open to jury that applicant was reckless as to whether victim consented – re-trial on all counts ordered
EVIDENCE – character evidence – character evidence in a particular respect – where rebuttal evidence should have been similarly confined

The text of this decision has been restricted

CaseChat Overview and Summary

The appellant in this case, Steele, was found guilty by a jury of 22 out of 23 charges related to various offences including assault, indecent assault, indecency, and sexual intercourse without consent. The offending occurred against seven young male victims over a period of years. The trial judge allowed the admission of tendency evidence in relation to the indecent assault counts, permitting the prosecution to adduce evidence of similar acts, but did not sufficiently confine the use of this evidence. The judge also allowed the Crown to rebut character evidence adduced by the appellant, which was not relevant to the aspect of character evidence that was raised. The appellant further contended that the judge erred in directing the jury that they could use his understanding of the term "sack whacking" as evidence of consciousness of guilt, as his answers were subjective and not established to be untruthful by the evidence. Lastly, the appellant challenged the reasonableness of the jury’s verdict on the count of sexual intercourse without consent, arguing that the jury could only reasonably infer recklessness if there was clear evidence of an attempt to ascertain consent.

The High Court examined whether the trial judge's directions to the jury regarding the use of tendency evidence and character evidence were appropriate. The court found that the trial judge did not sufficiently confine the use of tendency evidence and allowed the Crown to rebut character evidence that was not relevant to the aspect of character evidence that was raised. The court also held that the trial judge erred in directing the jury that they could use the appellant’s understanding of the term "sack whacking" as evidence of consciousness of guilt. However, the court found that these errors were not sufficient to affect the safety of the verdicts on the 21 counts of indecent assault, indecency, and assault. The court did find, however, that the jury’s verdict on the count of sexual intercourse without consent was unreasonable and could not be supported having regard to the evidence. The court ordered a re-trial on all counts.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Decision restricted [2021] NSWCCA 74
Decision date:	21 April 2021
Before:	Hoeben CJ at CL at [1] Price J at [2] Davies J at [3]
Catchwords:	CRIME – appeals – appeal against conviction – applicant charged with 23 offences – applicant found guilty by jury of 22 offences – offences of assault, indecent assault, indecency and one count of sexual intercourse without consent (count 7) – seven young male victims – indecent assault offending typically involved “sack whacking” – where tendency evidence was admitted on basis that it would be used only in respect of indecent assault counts – where directions of trial judge did not confine use of tendency evidence - whether trial judge erred in ruling that if applicant adduced evidence to prove he was of good character Crown would be permitted to adduce evidence in rebuttal – where rebuttal evidence was not relevant to the aspect of character evidence that was raised – whether trial judge erred in directing jury they could use applicant’s stated understanding of “sack whacking” as a lie evincing consciousness of guilt – where applicant’s answers wholly subjective and not established to be untruthful by evidence – whether verdict on count 7 is unreasonable and cannot be supported having regard to evidence – where inference open to jury that applicant was reckless as to whether victim consented – re-trial on all counts ordered EVIDENCE – character evidence – character evidence in a particular respect – where rebuttal evidence should have been similarly confined