Directions to jury - issues on appeal
- There was no complaint at trial about the directions to jury, including the tendency direction. Nor was there any challenge on appeal, other than with respect to the issues raised by the single ground of appeal, as follows:
"A miscarriage of justice occurred because:
(a) the trial judge failed to direct the jury that any doubt they may form with respect to the complainant's evidence about the Queensland incident ought to be considered by them when assessing the credibility and reliability of the complainant's evidence about the NSW incident; and
(b) the trial judge effectively told the jury that if they were not satisfied that the Queensland incident occurred then the evidence relating to it 'should be put completely to one side' when considering whether or not the NSW incident occurred."
- The first limb of the ground was, in substance, a complaint of failure to give a direction of the kind envisaged in R v Markuleski; [35] the second was a complaint that, at least in part, the directions actually given by the trial judge contradicted the thrust of a Markuleski direction.
- The principle established in Markuleski (not formulated in terms of a precise direction) concerned a risk inherent in the standard (and essential) direction, that the jury should consider each count in a multiple-count indictment separately, that the jury might disregard an adverse view of the credibility of the complainant on one count when separately assessing her evidence on other counts. At least in some circumstances, it may be important for the jury to be told that "where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally". [36] Thus, it was described as "desirable that the traditional direction as to treating each count separately is supplemented in a word against word case". [37]
- Two points of distinction should be noted. First, this was not a case where an accused was facing multiple counts: there was only one count on the indictment and therefore no need or place for a direction as to separate treatment. Secondly, "word against word" was intended to refer to a case where the complainant gave evidence of the offending, which was denied by the accused. In this case, the accused did not give evidence. Rather, his wife gave evidence which was inconsistent with aspects of the complainant's accounts, although on no view was she present when the alleged offending took place. Nevertheless, the issue relating to consistency in assessing a complainant's credibility and reliability is not necessarily limited to such cases. [38]
- A more general problem is that the reasoning in Markuleski did not address the question of admissible tendency evidence. At least in current practice, where there are multiple counts of similar offending on one indictment, the prosecution will seek to treat the evidence on each count as admissible in respect of others, a process known as cross-admissibility. Because evidence of other offending is not otherwise admissible, cross-admissibility will depend upon satisfaction of the principles of admissibility governing tendency evidence in ss 97 and 101 of the Evidence Act 1995 (NSW).
- In The Queen v Dennis Bauer (a pseudonym), [39] the High Court addressed "directions ordinarily to be given to a jury in a single complainant sexual offences case where the Crown is permitted to adduce evidence of uncharged acts as evidence of the accused having a sexual interest in the complainant and a tendency to act upon it" in the following terms (edited to identify the separate propositions numerically):
"86 … Where evidence is admitted on that basis, (1) the trial judge should direct the jury that the Crown argues that the evidence establishes that the accused had a sexual interest in the complainant and a tendency to act upon it which the Crown contends makes it more likely that the accused committed the charged offence or offences. (2) If the Crown also relies on the evidence as putting the charged offence or offences in context in some other identified fashion or respects, the trial judge should further direct the jury that the Crown contends that the evidence serves also to put the charged offence or offences in context and identify the manner or respects in which the Crown contends that it does so. (3) The trial judge should stress that the evidence of uncharged acts has been admitted for those purposes and, if the jury are persuaded by it, that it is open to the jury to use the evidence in those ways, although no other. (4) The trial judge should further stress that it is not enough, however, to convict the accused that the jury may be satisfied of the commission of the uncharged acts or that they establish that the accused had a sexual interest in the complainant on which the accused had acted in the past; it remains that the jury cannot find the accused guilty of any charged offence unless upon their consideration of all of the evidence relevant to the charge they are satisfied of the accused's guilt of that offence beyond reasonable doubt. (5) Contrary to the practice which has operated for some time in New South Wales, trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt." (References omitted)
The last proposition (5) is now addressed in s 161A of the Criminal Procedure Act 1986 (NSW), following the Jury Directions Act 2015 (Vic), ss 61, 62 (note 1).
- Tendency evidence is not to be viewed in isolation from other evidence but is to be weighed together with other evidence: its purpose and legitimate effect is to provide support to the credibility or reliability of the complainant in respect of each charged offence: proposition (1). As now stated in s 161A of the Criminal Procedure Act, the jury must not be directed that tendency evidence "needs to be proved beyond reasonable doubt", unless "there is a significant possibility that a jury will rely on an act or omission adduced as tendency evidence as "essential" in reaching a finding of guilt. These two principles reflect the metaphor that evidence may either form a strand in a rope, or a link in a chain: not all strands must bear the weight of proof beyond reasonable doubt, but each link must. Accordingly, it would be wrong in relation to most tendency evidence to direct the jury in a way which assumes they will consider whether they entertain a reasonable doubt as to each element of tendency evidence.
- The appropriateness of a particular direction was further complicated in the present case because the evidence was admitted also as "relationship" or context evidence, requiring a direction in accordance with proposition (2).
- Consistently with those principles, the judge gave a standard form of direction in relation to tendency evidence, including the following passage: [40]
"So you will need to consider the evidence relating to this alleged conduct of the accused and decide whether he did in fact conduct himself in the way the Crown alleges. In doing so you do not consider each of the acts in isolation. You should consider all the evidence and decide what conduct you are satisfied occurred. If you decide all or at least some of the conduct occurred, you then need to consider whether it enables the inference to be drawn [that] the accused had the tendency to have a sexual interest in his step-granddaughter and to act on that interest by getting the complainant to put her hand on his penis while they were staying in the same house and the accused had taken her into his bed."
- The direction with respect to tendency evidence was lengthy, but ended with a passage entirely derived from the standard form, and consistent with proposition (3) in Bauer, in the following terms: [41]
"Now, some of the evidence before you that is relied upon by the Crown to prove the tendency alleged concerns an incident that is not the subject of any charge in the indictment, that is the Queensland incident. If you are not satisfied that an incident that is not the subject of a charge occurred, then the evidence relating to it should be put completely to one side. There is no other issue in the case to which it is relevant."
- After a warning in relation to maintaining an objective stance in respect of distasteful evidence, the judge turned to summarise the prosecution case. In doing so, he repeated his direction as to the manner in which the Queensland incident was relied upon as tendency evidence and the fact that "the Crown notes tendency evidence cannot be a substitute for proof of the essential elements of count 1". [42] However, as the Queensland incident had also been relied upon as "relationship evidence" the judge had to deal with it in that context, stating: [43]
"In respect of the context evidence, Madam Crown said the Queensland incident also provides you with a full history of the accused's conduct towards the complainant, so it gives some further background as well. And the fact that it occurred later in time, indeed, it may be an explanation for why she spoke about it first, and used it to anchor the Sydney incident, which was count 1. I repeat, in directing you that tendency evidence cannot be used other than in the way I have described, part of what I am saying to you is that you must not substitute the conduct of the accused on some other occasion for the conduct that is relied upon in the Crown [sic] to prove a particular charge, the assault charge here."
- The judge then indicated that he would address the elements of the charge and adjourned briefly prior to taking that course. In the absence of the jury he appears to have asked counsel if there were any issues so far, counsel for the accused saying, "Nothing from my part, your Honour". [44] The prosecutor raised an issue as to whether a more complete direction on "context evidence" should be given, in accordance with the standard direction at [4-215] of the Criminal Trial Courts Bench Book. The judge noted that he had already directed the jury in the terms set out above at [46] (to which objection is now taken) which were reflected in the proposed further direction. He suggested that other aspects of the standard "context" direction were inappropriate, as clearly they were. For example, the standard direction contains the following passage: [45]
"However, I must give you some important warnings with regard to the use of this evidence of other acts.
Firstly, you must not use this evidence as establishing a tendency on the part of the accused to commit offences of the type charged."
- Self-evidently, where the prosecutor had relied upon the evidence (without objection) both as tendency and context evidence, such a direction would have been quite inappropriate. But the opportunity for the defence to object to the direction that had been given was not taken.