New South Wales Court of Criminal Appeal CITATION: REES v R [2010] NSWCCA 66 HEARING DATE(S): 15/04/2010 JUDGMENT DATE: 15 April 2010 JUDGMENT OF: Handley AJA at 1; Grove J at 22; Hislop J at 23 EX TEMPORE JUDGMENT DATE: 15 April 2010 1. Appeal allowed; DECISION: 2. Conviction quashed; 3. New trial ordered. CATCHWORDS: CRIMINAL LAW – sexual offence – relationship evidence – proper use of directions to jury. - CRIMINAL APPEAL – sexual offence –misdirection on proper use of relationship evidence –complainant's evidence not corroborated – oath against oath –proviso not available. LEGISLATION CITED: Crimes Act, 61I CATEGORY: Principal judgment CASES CITED : JDK v The Queen 2009 NSWCCA 76 PARTIES: Alan Rees - Applicant Regina - Respondent/Crown FILE NUMBER(S): CCA 2007/15886 COUNSEL: T Gartelmann - Appeallant Jennifer Dwyer - Respondent SOLICITORS: Ryan & Bosscher Lawyers - Appellant S Kavanagh, Solicitor DPP - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/15886 LOWER COURT JUDICIAL OFFICER: Finnane DCJ LOWER COURT DATE OF DECISION: 20/06/2008 IN THE COURT OF CRIMINAL APPEAL CCA 2007/15886 HANDLEY AJA GROVE J HISLOP J THURSDAY 15 APRIL 2010 Alan REES v R catchwords CRIMINAL LAW – sexual offence – relationship evidence – proper use of directions to jury. CRIMINAL APPEAL – sexual offence –misdirection on proper use of relationship evidence –complainant's evidence not corroborated – oath against oath –proviso not available. HEADNOTE The appellant was convicted of sexual intercourse without consent contrary to s 61I of the Crimes Act . The complainant, who was over the age of 16 at all relevant times, gave evidence about the appellant's sexual interest in her, and his inappropriate conduct over a long period of time before the offence charged. This was admitted as relationship evidence. The Judge's standard directions to the jury on the proper use of such evidence were later held in JDK v The Queen [2009] NSWCCA 76 to be erroneous. The accused denied the complainant's evidence about the offence and the relationship. Her evidence was not corroborated. The Crown argued that the jury must have accepted the complainant's evidence and invited the Court to apply the proviso to s 6 of the Criminal Appeal Act and dismiss the appeal. HELD: The Court would not apply the proviso in a case where it was essentially oath against oath. ORDERS (1) Appeal allowed; (2) Conviction quashed; (3) New trial ordered. IN THE COURT OF CRIMINAL APPEAL CCA 2007/15886 HANDLEY AJA GROVE J HISLOP J THURSDAY 15 APRIL 2010 Alan REES v R Judgment 1 HANDLEY AJA: The appellant stood trial before his Honour Judge Finnane SC and a jury on 3 December 2007 on an indictment charging him with one count of assault with an act of indecency during November 2001 contrary to section 61I of the Crimes Act, and one count of sexual intercourse with the same victim without consent on 30 September 2006 contrary to section 61I of the Crimes Act. The appellant pleaded not guilty and on 18 December 2007 he was acquitted of the first offence but convicted of the second. He was sentenced on 20 June 2008 to a term of imprisonment of seven years to date from that date with a non-parole period of four years. 2 There are two grounds of appeal which challenge the conviction and one which challenges the sentence. The first ground alleges that the Judge misdirected the jury as to the use to be made of so-called context or relationship evidence led in the Crown case. The second challenge is to the adequacy of the Judge's redirection on the relevance of the complainant's motives for lying. 3 It will be convenient to deal first with the second ground. The trial judge commenced his summing-up on Friday, 13 December, and finished the following Monday. On the Friday he referred to the complainant's evidence that on 30 September 2006, the day of the offence, the subject of the second charge, she immediately complained to her partner, the son of the accused. She also gave evidence of a complaint to her partner in 2001 about the offence the subject of the first charge. The Judge said: "She has said that she complained to him earlier in the peace and he said to her in 2001, 'We better leave the place' or words to that effect. He did not want to confront anyone obviously if that were true and after the incident on 30 September 2006 if that occurred he said, 'What do you expect me to do about it?' He, on the other hand, said: 'Yes, she said that. I said to her it is all lies'. Up to that particular time they had been living together, they had a son, they had been living in a variety of places, they had come back and forth. You have those two versions but it seems quite clear that she did make that complaint. So you might want to ask yourself why would she say it if it did not happen at all? Why would she say it to the son if it just did not happen at all? But you bear in mind there are cases of terrible miscarriages of justice where the only evidence against a man comes from a woman; and it would be something you would have to think long and hard about. You would have to consider very carefully more than just demeanour". 4 After the jury had been released for the day, counsel for the accused asked the Judge at AB 26 to give the standard direction about a complainant who may have a motive to lie for unknown reasons and the accused does not have to prove that she had a particular reason for making it up. After legal argument, the Judge said at AB 28: "I am minded to say something about it but I will be obliged if you could work out what you wanted me to say and I will consider that. I think that is a reasonable proposition". 5 On the following Monday, counsel for the accused at AB 31 handed up a draft redirection, which he had given to the Crown Prosecutor shortly before. He said, "That direction should covers it as best I can suggest, your Honour". 6 The Crown Prosecutor said at AB 32,. "Your Honour, I don't have any objection to what my friend has typed out as being appropriate". 7 The Judge included the further direction suggested by counsel in his further summing-up that morning. Some other redirections were sought by counsel for the accused but not in respect of the redirection about possible motives for lying. 8 The appellant, now represented by different counsel, seeks to complain about the inadequacy of the Judge's redirection. Rule 4 of the Court of Criminal Appeal Rules provides: No direction, omission to direct, or decision as to the admission or rejection of evidence given by the Judge presiding at the trial, shall, without leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal. 9 The alleged deficiencies in the Judge's redirection on possible motives for lying fall squarely within rule 4. In the circumstances of this case the Court should apply the rule and refuse the appellant leave to raise this ground. 10 The first ground of appeal is based on a judge's written direction to the jury, which became MFI H, on the use they were entitled to make of the context or relationship evidence given by the complainant. This related to the sexual advances and indecent assaults by the accused during the period between the event the subject of the first charge, and that the subject of the second. His Honour's written directions on this topic were: "Relationship evidence. During the course of the trial, evidence was presented to establish the true relationship between the accused and the complainant. It is of course, a matter for you to assess whether you accept the truth of this evidence, and what it shows about their relationship. The evidence was presented to give a context to what happened on the occasions of the alleged indecent assault and the act of sexual intercourse. You can consider this evidence and use it to assist you in understanding what was the true relationship between the parties on these occasions. The relationship evidence consists of evidence of the complainant that on a fairly regular basis the accused would embrace the complainant around the area of her breasts, would kiss her and touch her in a way that caused her to be upset. You must consider this evidence very carefully. You can use it to enable you to understand the true nature of the relationship between them, which on the Crown case was a sexual one from an early time, to assist you in determining whether you are satisfied beyond reasonable doubt that the Crown has proved beyond reasonable doubt that the accused committed the offences with which he has been charged. You cannot use this evidence to reason that it shows in him a propensity or tendency to commit sexual offences." 11 His Honour's oral directions to the jury on this topic were as follows: "Now there is also evidence, I will come to it in a minute, called relationship evidence which is in paragraph 5 of page 4. It is said that during the period from 2001 up to 2006 on a fairly regular basis the accused would embrace her around the area of her breasts, would kiss her and touch her in an indecent fashion really. And that evidence was introduced to show you, the Crown sought to show you, that the relationship between them from an early time had a sexual aspect to it. It was not a relationship which she wanted but in fact it occurred on a fairly regular basis. There is evidence that from time to time she stayed in the home. Quite apart from the conflict of evidence early in the piece about whether she stayed continually, certainly there is evidence that at various times on weekends she would go and stay there on a Saturday night and stay into the Sunday. Her evidence was to the effect that every second or third week one of these events would occur. Well you can consider and you have to see do you accept it? If you do, does it tell you anything about the relationship between them? You cannot use it to reason that it shows that he has a propensity to commit rape but you can use it to say what is their relationship? Now, of course if you do not accept it then the relationship is not of this type at all. And if you have doubts about whether there was such a relationship then you should reject the question of relationship evidence." 12 The appellant submits that the jury was not correctly instructed on the use they could properly make of the complainant's relationship or context evidence if they accepted it. He submits that in JDK v The Queen [2009] NSWCCA 76 this Court held that jury instructions by the same judge - and in practically the same terms - were erroneous. In that case the Court quashed the conviction and ordered a new trial. McClellan CJ at CL who delivered the principal judgment said at paras 36 and 37: "… the jury were not told that they could not use the evidence when considering whether elements of the relevant offences had been proved. To the contrary they were told that the evidence enabled them to understand the 'true relationship' which was 'a sexual one' and could be used to assist them in determining the particular charges. This is propensity reasoning ... [W]hen it is said that the evidence is admissible so that the jury may understand the 'true nature of the relationship', without defining the issue which is informed by this understanding, the jury are being invited to use the evidence to reason towards the guilt of the appellant. … The problem stemmed from a failure to identify the issue which justified the admission of the evidence." 13 Counsel now appearing for the appellant properly acknowledged that the trial judge had discussed a draft of his written directions with both counsel, and neither sought any further or other direction. Rule 4 is again engaged. However this error was too fundamental to be shut out by a refusal of leave pursuant to rule 4. I would therefore grant that leave. 14 Prima facie, an error of this nature in a case of this nature requires the Court to quash the conviction and order a new trial. The Crown has invited the Court to apply the proviso to s 6 of the Criminal Appeal Act and dismiss the appeal because there was no substantial miscarriage of justice. In order to convict the appellant on the second count, the jury had to accept the complainant's evidence about the events on the morning of 30 September and in all probability, they also accepted her relationship or context evidence. The acquittal on the first charge was justified by the complainant's confusion or mistake about when the relevant events had occurred. The jury were entitled to reject that part of her evidence without forming an unfavourable view about her overall reliability as a witness. 15 The complainant's evidence on the second charge was uncorroborated, but her prompt complaints to her partner and others, and her conduct at that time, was consistent with her evidence. On the other hand, there was also a strong defence case, at least on the face of the record, in relation to the lack of any opportunity for the appellant to make inappropriate sexual advances and have inappropriate sexual contact with the complainant on many occasions during the lengthy period between the events charged in the first count and the events charged in the second. 16 The appellant completely denied the evidence given by the complainant about the offences and his intervening conduct, and in particular he denied that sexual intercourse took place on the morning of 30 September 2006. There is no direct corroboration of the complainant's evidence about the second offence. 17 The case is essentially one of oath against oath, although as I have previously said, there was corroborated evidence of prompt and consistent complaints on and after 30 September. 18 Nevertheless, one way or another, all the subsequent complaints and conduct come back to the complainant herself. There is no independent corroboration of her primary evidence about the offence. 19 Crown counsel was asked by the Court whether she was aware of any case where this or a similar Court has applied the proviso where there has been a serious misdirection and the case is essentially one of oath against oath: 20 Crown counsel was not able to refer the Court to such a case and the Court is not aware of any. The evidence was highly prejudicial though admissible for a limited purpose. It was essential that the jury be given a clear instruction as to the limited use they could properly make of that evidence. In particular they had to be instructed that they could not use it to demonstrate the propensity of the accused to offend in a sexual manner against the complainant. This is a difficult guideline for any jury or indeed any judge to follow in assessing such evidence. In view of its prejudicial nature, I cannot be judicially satisfied that a jury properly instructed about the use they could make of this evidence would inevitably have convicted the appellant. 21 I therefore propose that the appeal be allowed, that the conviction be quashed and that a new trial be ordered. 22 GROVE J: I agree with Handley AJA. 23 HISLOP J: I also agree. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.