Jackson v R [2020] NSWCCA 5
Jackson v R [2020] NSWCCA 5 · Read the judgment on AustLII
Catchwords: Tendency – uncharged acts – single- vs multi-complainant sexual assault matters
The Court of Criminal Appeal (‘CCA’) has considered whether, in light of recent High Court authority, there is a different standard of proof to be applied to uncharged acts when there is only one complainant in sex matters, versus when there is more than one. This was not thought to be the right vehicle to decide the issue – although the general sense is that the evidence should be treated the same way, regardless of how many complainants there are.
The applicant faced trial for sex offences relating to two separate child complainants. The Crown alleged that the applicant had a tendency, amongst other things, to have a sexual interest in young males (aged 13 or younger), and to act on that tendency variously by indecently or sexually assaulting them. The Crown thus relied upon the tendency reasoning for the evidence of the two separate complainants, each as regarded the other’s case, but also relied on the uncharged allegations of a third young man who said it had also happened to him (it appears those acts were not charged here because they happened in Victoria). A jury found the applicant guilty of two counts relating to one of the complainants, but acquitted him of the other four counts on the indictment.
The applicant appealed on grounds asserting, amongst other things, that the trial judge had erred in her directions in relation to the tendency evidence. The applicant made a slightly unexpected argument: that the trial judge had set the burden of proof too high for the Crown in relation to the tendency evidence, in that she had directed the jury that they had to be satisfied beyond reasonable doubt of the tendency before they could act on it. This caused the risk, so the argument ran, that the tendency evidence became an essential ‘intermediate fact’. And that, he said, could have led the jury to give that evidence too much weight to the evidence, or could have given rise to an unacceptable risk of a compromise verdict, and thereby occasioned a miscarriage of justice.
The Court (Price J; Hoeben CJ at CL and Walton J agreeing) dismissed the appeal. The decision points out that this trial had occurred before the judgment in The Queen v Bauer [2018] HCA 40 (‘Bauer’). In that decision the High Court overturned the pre-existing position in NSW in relation to the standard of proof for tendency via uncharged acts; here the trial judge had faithfully applied the pre-existing law to the effect that the criminal standard should be applied (at [57]). In Bauer the High Court considered that in single complainant sexual offences cases the jury should not ordinarily be directed that the standard of proof of uncharged acts is beyond reasonable doubt (at [86] of Bauer, [66]-[66] of this decision). Less clear is whether the High Court’s position in relation to the standard of proof for uncharged acts was intended to be confined to single complainant sexual assault trials – but here the Court found there was no logical reason for different standards of proof depending on the number of complainants (at [67]), and to the extent that there is ambiguity, the Court did not think this case an appropriate vehicle to determine the issue (at [68]). The trial judge made plain the limits placed on the use of the uncharged tendency acts could be used (at [71]) and the jury evidently paid careful attention to the trial judge’s directions; they acquitted the accused of four of the six counts on indictment (at [73]). For those and other reasons, the appeal was dismissed.
The relevance for present purposes is mainly to observe that there is a looming question about what standard to apply for uncharged acts in multi-complainant sexual assault cases – sadly an all-too-common species of case for criminal lawyers.