R v HMA

The appellant was convicted of two counts of sexual assault of a child. The sole ground of the appeal was that the learned trial judge had erred by refusing to allow evidence to be led about his verdicts of acquittal from an earlier trial, involving a different complainant who had also been a preliminary complaint witness to the trial the subject of the appeal. On the defence case, both complainants had conspired with another person to blackmail the appellant by making false allegations. The Court of Appeal accepted that the trial judge had erred; the effect of the ruling was to prevent the defence from cross-examining the alleged conspiracy and motive to lie. Such cross-examination would inevitably lead to the jury becoming aware of previous, similar allegations against the appellant. In the absence of evidence of the acquittals, there would be prejudice to the appellant, who was entitled to the benefit of those acquittals. The Court of Appeal quashed the convictions and ordered a retrial.

Bowskill CJ, Flanagan JA, and Burns J

30 August 2024

Background

A jury found the appellant was found guilty of one count of indecent treatment of a child under 16 and one count of indecent treatment of a child while under care, both relating to the same complainant (“JM”). [1]. The appellant denied any sexual assaults of JM or the complainant in an earlier trial, SJ. He alleged they had conspired with BR, a preliminary complaint witness, to extort money from the appellant by threats to bring the allegations of sexual assaults. [6]. It was not contested that BR made such a demand, and that SJ and JM discussed their complaints before attending the police station together. [6].

Ground of appeal

The appellant appealed his convictions on the sole ground that the trial judge erred in law in ruling the appellant could not adduce evidence of acquittals in the earlier trial involving SJ. [2]. SJ was a preliminary complaint witness for the JM in the present trial. [2]. The appellant argued the trial judge’s ruling impermissibly constrained the conduct of his defence. [2].

At the earlier trial, the trial judge, sitting alone, rejected the first complainant’s allegations because of significant inconsistencies in her accounts to preliminary complaint witnesses. [7]. Consequently, the appellant was convicted of both counts of sexual offending in relation to the first complainant. [8].

Two trials were then conducted regarding JM’s allegations. The first was aborted due to the defence counsel asking SJ, as part of cross-examination about the alleged extortion, that the outcome of the earlier trial was an acquittal. The trial judge ruled that question impermissible; the jury were subsequently discharged. [16].

At the second trial, defence counsel did not cross-examine about the possible “motive to lie” raised by the alleged extortion. [17]. This was due to a forensic decision, made on instructions, that raising the fact-like allegations had been made before against the appellant without informing the jury of the acquittal “brought with it a high risk of unfair prejudice”. [22].

Court of Appeal’s decision

The Court of Appeal held that the trial judge’s ruling to exclude evidence of the earlier acquittals was an error of law. [26]. The Court found it was unnecessary to determine whether the proviso should be applied as the Crown made no submission in support of that course. [25]. The Court set aside the convictions and ordered a new trial. [48].

The Court explained “Whether evidence of an acquittal is admissible will depend on its relevance” and this requires detailed consideration of the facts and circumstances of the particular case. [26]. The High Court decisions of R v Storey (1978) 140 CLR 364 (“Storey”) and Washer v Western Australia (2007) 234 CLR 492 (“Washer”), as considered by the Court of Appeal in R v GJL (2021) 8 QR 479, provide guidance. [27]. A critical principle identified in those cases is that “an accused must not be placed at the risk of being thought guilty of an offence of which they have been acquitted, or in any sense being treated as guilty”. [28].

Storey and Washer were both cases where the Crown sought to adduce evidence tending to show the relevant defendants were guilty of an offence of which they had been acquitted. [31]. The Court of Appeal found the principle is no less applicable, however, to a case like the present where the evidence is sought to be led by defence. [34]–[41]. The principle underpins the protection against double jeopardy. [33]–[34]. The question will be whether the acquittal evidence is relevant to the present trial.

In this case, the Court found it was inevitable that in cross-examining as to the motive to lie or conspiracy, the jury would learn of the previous allegations by SJ against the appellant. [42]. Such cross-examination had a legitimate basis, including to provide context to pre-text calls with JM. [44]–[46]. However, on the trial judge’s ruling, the acquittal of those allegations could not be led. [43]. In the absence of evidence of the acquittals, the appellant “was prejudiced in the conduct of his defence.” [47]. An appropriate direction could have, on admission of the evidence, been given to the jury about the use to be made of the acquittals. [47].

The Court of Appeal observed it is undesirable for the admissibility of such evidence to be raised in cross-examination without prior notice to the trial judge, particularly as, if the evidence is made admissible, specific directions about that evidence may be required. [26].

H Edwards of Counsel