Read the full judgment text of CACC 26/2008 on BabelCite. This Court of Appeal judgment was delivered on 13 May 2010 before Tang V-P, Yeung JJA, Yuen JJA.
Criminal law – sexual offences – evidence of uncharged acts – admissibility – jury directions – whether trial judge's directions on uncharged acts evidence were adequate – standard of proof – use of the word 'background' to describe uncharged acts evidence – defendant charged with seven sexual offences against stepchildren X and Y including buggery, gross indecency and unlawful sexual intercourse committed over the period 1993 to 2006 – complainants alleged numerous further similar uncharged acts – whether evidence of uncharged acts is admissible – held that admissibility depends on the circumstances of each case and the court is not bound to refuse such evidence by reason of its nature alone – such evidence may be admitted to prove setting and context, to explain the defendant's confidence in repeating the offence, to explain unusual acts by the complainant such as lack of surprise, fear or complaint, or to explain why the complainant cannot recall specific dates and details – evidence may be admitted if its refusal would result in the jury having an incomplete or incomprehensible account – but must be excluded if its prejudicial effect outweighs its probative force – what standard of proof applies to uncharged acts evidence – held that generally the standard should be beyond reasonable doubt and the jury must not consider such evidence unless sure the uncharged acts occurred – whether the trial judge's directions were adequate – held no – judge failed to direct on the standard of proof and described the evidence merely as 'background' or 'background material', which is ambiguous and may suggest such evidence is uncontroversial or that the defendant has a propensity to commit the offence – additional direction that the charges referred to specific dates and places may have given the impression the uncharged acts lacked only specificity – resulting in unfairness to the Applicant – appeal allowed – conviction quashed – re-trial ordered – application for leave to appeal against sentence not dealt with.
Legal issues: Admissibility of evidence of uncharged acts in sexual offence trials · Standard of proof for uncharged acts evidence · Adequacy of jury directions on uncharged acts evidence
Outcome: Appeal allowed; conviction on all 7 charges quashed; re-trial ordered. Application for leave to appeal against sentence not dealt with.
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