Miscarriage of Justice Claimed by Appellant Against Trial Judge
Hamilton (a pseudonym) v The Queen [2021] HCA 33 (3 November 2021)
The appellant was charged with ten counts of aggravated indecent assault against three of his children. The trial judge gave a Murray direction requiring the jury not to convict on any count unless satisfied that evidence of each child was honest and reliable in relation to that count. The appellant alleges that there was a miscarriage of justice because of failure to give anti‑tendency direction in the trial.
Facts:
The appellant was charged with ten counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW). The offences were alleged to have been committed on separate occasions against three of the appellant's five children. The case proceeded on the footing that, had each count been tried separately, only the evidence of offending bearing on each particular count would have been admissible against the appellant. The defence had all ten counts tried together as part of a strategy of inviting the jury to consider the evidence of all the complainants on all counts and, from a consideration of the totality of the evidence, to conclude that the children fabricated their allegations against him at the urging of their mother, his former wife.
At trial, each complainant gave evidence of the appellant's offending against that child and of the circumstances of that child's complaint about the appellant's conduct. In addition, the Crown led further evidence that fell into three categories. The first category can be described as "aggression evidence" which included evidence from the complainants of episodes of aggression and violence by the appellant towards his male children. The second category of evidence can be described as the "rugby ball incident evidence" which related to when the appellant threw the Fifth Child to the ground and trod on his arm and head, and threw a rugby ball at the mother's chest at a time when she was recovering from breast reconstruction surgery.
The third category of evidence was described by the trial judge in his summing-up to the jury as the "evidence of other acts". This comprised evidence from each of the Third Child and another of the appellant's sons ("the Fourth Child") of instances where they saw the appellant touching the Fifth Child's penis. This evidence did not relate to any specific offence with which the appellant was charged. Instead, the Crown sought to rely on this evidence of other, uncharged acts as tendency evidence in respect of the counts concerning the Fifth Child. To that end, in advance of the trial, the Crown served a tendency evidence notice under s 97 of the Evidence Act 1995 (NSW).
The counsel for the defence did not seek a direction from the trial judge which the appellant now contends should have been given, that the jury must not reason from a finding that the appellant was guilty of one charged offence to conclude that he was guilty in respect of other charged offences because he was the kind of person who engaged in that kind of misconduct ("an anti‑tendency direction"). The trial judge directed the jury that they could not convict the appellant unless they were satisfied beyond a reasonable doubt that the evidence of each child was honest and reliable in relation to each of the counts concerning that child ("the Murray direction").
Ultimately, the evidence of the other, uncharged acts was left to the jury. The Crown summarised each complainant's evidence separately, and advanced reasons why the jury might accept that evidence quite apart from the evidence of the other complainants as to the appellant's offending against them. The jury returned guilty verdicts on all ten counts. The appellant appealed to the New South Wales Court of Criminal Appeal on three grounds, all of which were rejected.
The first ground is the only basis upon which the appellant appeals to this Court. This ground was that the trial miscarried because the trial judge did not give the jury an anti‑tendency direction. The Court of Criminal Appeal (Adamson and Beech‑Jones JJ, Macfarlan JA dissenting) rejected this ground, concluding that the absence of an anti‑tendency direction did not, in the circumstances of this case, expose the appellant to a risk of conviction by the application of tendency reasoning and did not give rise to a miscarriage of justice.
Issue:
Whether or not the trial miscarried justice because of the failure to give anti‑tendency direction.
Applicable law:
Criminal Appeal Act 1912 (NSW), s 6(1) - provides that an appeal may be brought if "there was a miscarriage of justice."
De Jesus v The Queen [1986] HCA 65 - where Macfarlan JA reasoned that a ruling against the cross‑admissibility of evidence relating to multiple counts would ordinarily result in an order for separate trials, because of the difficulty of confining the jury to permissible non-tendency reasoning.
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 at 234 [36] - McHugh J expressed the opinion that, in the case of a single trial of alleged offences against different victims where the evidence in respect of one or more counts is inadmissible in respect of the other counts, "a propensity warning will almost certainly be required".
Doggett v The Queen (2001) 208 CLR 343 - emphasised that even experienced counsel may make mistakes or be guilty of oversight and omission.
BRS v The Queen [1997] HCA 47 - concluded that the accused had been denied a fair trial, with McHugh J observing that the "only basis for concluding that the jury may have used a forbidden chain of reasoning in reaching its verdict" was the axiomatic proposition that there was a real risk of propensity reasoning in the face of evidence of propensity.
Erohin v The Queen [2006] NSWCCA 102 - authority which does not support the absolute proposition that a failure to give an anti‑tendency direction in such circumstances always constitutes a miscarriage of justice.
R v Bauer (a pseudonym) [2018] HCA 40 - Macfarlan JA reasoned that a ruling against the cross‑admissibility of evidence relating to multiple counts would ordinarily result in an order for separate trials, because of the difficulty of confining the jury to permissible non-tendency reasoning.
TKWJ v The Queen [2002] HCA 46 - provided that a rational decision by defence counsel as to the conduct of a criminal trial that can be seen to have been a legitimate forensic choice that competent counsel could fairly make will not give rise to a miscarriage of justice.
Nudd v The Queen [2006] HCA 9 - where it was held that within our system of justice, save for exceptional cases, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue.
De Silva v The Queen [2019] HCA 48; (2019) 268 CLR 57 - Gordon JJ said that the failure of counsel to seek a direction is not determinative against successful challenge in a case in which the direction was required to avoid a perceptible risk of the miscarriage of justice.
Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514 - relied upon by the appellant in contending that he was deprived of his entitlement to a trial in which the relevant law was correctly explained to the jury, and that this was a miscarriage of justice.
B v The Queen [1992] HCA 68; (1992) 175 CLR 599 - provides that evidence admitted for one purpose is not admissible for another purpose, and cannot be used for another purpose.
Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 545 - explained that in a criminal trial evidence of the commission of offences other than the offence charged is prima facie inadmissible against an accused person.
Perry v The Queen (1982) 150 CLR 580 at 585 - provides that the risk that the jury will reason towards guilt by using the conviction or propensity arises because such evidence would ordinarily be regarded as relevant and because it is thought that juries are likely to attach importance (and, indeed, too much importance) to such evidence.
Director of Public Prosecutions v Boardman [1975] AC 421 at 459 - observed that a trial involving multiple complainants would require the jury to "perform mental gymnastics" by directions to the effect that "in considering whether the accused is guilty of the offence alleged against him by A they must put out of mind the fact – which they know – that B and C are making similar allegations against him".
Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610 at 625 [47] - where the plurality stated that a trial judge should identify the inferences which may be open from it or the questions which may have occurred to the jury without the evidence.
Analysis:
The appellant contended that the trial miscarried because the jury were not warned by the trial judge against using tendency reasoning. Since the appellant's counsel had not sought a direction to that effect at trial, the appellant was required leave to raise this ground pursuant to r 4 of the Criminal Appeal Rules (NSW). The Court of Criminal Appeal refused leave to appeal on that ground. Whether a miscarriage of justice is occasioned by a failure to give an anti‑tendency direction depends on the extent of the risk that the jury will engage in tendency reasoning.
In the circumstances, the combined effect of the separate consideration direction and the Murray direction was sufficient to ensure that the jury understood that each of the First Child, the Third Child and the Fifth Child was the "only witness" to the events comprising each count relating to each child, so that the risk of the jury having engaged in tendency reasoning was substantially diminished. Nevertheless, there remained a theoretical risk that the jury might reason from their acceptance of the evidence of one complainant, to the view that the appellant was the type of person who would commit the offences with which he was charged, and then to conclude that the evidence of another complainant in relation to similar offending was honest and accurate. In the context where a Murray direction had been given, this risk was not sufficiently material.
The nature of the defence case of concoction and the various straightforward paths of reasoning towards guilt available to the jury meant there was little practical risk that the jury might embark upon the circuitous route of tendency reasoning. There is an air of unreality in the suggestion that an anti‑tendency direction was necessary to ensure that the jury did not reason to guilt by reliance on tendency reasoning. The Murray direction was expressed in a manner which may have positively encouraged the jury to consider the honesty and accuracy of the complainants collectively (by instructing the jury that "unless you are satisfied beyond a reasonable doubt that [the first child], [the third child], and [the fifth child] are both honest and accurate witnesses in the accounts that they have given you cannot find the accused guilty.
While it may be accepted that the trial judge's directions to the jury did not positively encourage impermissible tendency reasoning, they did not discourage the misuse of the evidence of the various complainants and, accordingly, did not reduce the risk of impermissible reasoning. In the Court of Criminal Appeal, the respondent did not submit that, if there was a miscarriage of justice, the proviso in s 6(1) of the Criminal Appeal Act could be applied.
Conclusion:
The Court of Criminal Appeal erred in failing to identify the real risk of conviction by impermissible reasoning in circumstances where the jury was not explicitly warned that the evidence of each complainant was not relevant to the charges concerning each of the other complainants, or that the evidence of offences against one complainant must not be treated as tending to prove that the appellant was guilty of any offence against another complainant or to prove an inclination in the appellant towards the alleged offending conduct. The Court allows the appeal, sets aside the orders of the Court of Criminal Appeal made on 27 April 2020 and, in their place, order that leave to appeal on ground 1 be granted, the appeal be allowed, the appellant's convictions be quashed, and a retrial be ordered.
