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Court of Criminal Appeal 3 March 1999

REGINA v. LAWLER

[1999] NSWCCA 17

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT JUDGE ONLY TRIAL NATURE OF APPEAL "UNSAFE AND UNSATISFACTORY" QUESTIONS OF CREDIBILITY

Citation: Regina v Lawler [1999] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 3 March 1999
Judge(s): Greg James J, Grove J, Dunford J

Background

The appellant was tried before a judge alone in the District Court at Queanbeyan on a charge of sexual intercourse without consent under s 61I of the Crimes Act 1900. The alleged offence occurred on Christmas Day 1996 in Yass. The trial judge, Shillington DCJ, returned a verdict of guilty, and the appellant was subsequently sentenced to four years penal servitude with a minimum term of 18 months.

The prosecution case rested on the complainant's account that she was heavily intoxicated, had fallen asleep on her bed fully clothed, and became aware of a person having intercourse with her without her consent. Circumstantial evidence, including the complainant's highly distressed demeanour immediately after the incident, supported her account. The appellant denied the charge, asserting that the complainant had consented.

The appellant appealed against conviction only, filing ten grounds of appeal. Those grounds challenged the trial judge's findings on consent, his treatment of various pieces of evidence, alleged self-misdirection on the part of the judge, alleged bias or prejudice, and contended that the verdict was unsafe and unsatisfactory.

  • Whether the trial judge erred in finding the complainant did not consent to sexual intercourse
  • Whether the judge misdirected himself in his treatment of the complainant's "hysterical" demeanour as corroborating her account
  • Whether the judge failed adequately to address evidence of the complainant's intoxication
  • Whether the judge drew unfair inferences from certain evidence, including the appellant's unawareness of which person was in the room
  • Whether the judge failed to apply principles from Jones v Dunkel regarding uncalled Crown witnesses
  • Whether evidence contamination by another witness was insufficiently considered
  • Whether the verdict was unsafe and unsatisfactory having regard to the cumulative effect of the above grounds

Decision

The Court of Criminal Appeal dismissed all ten grounds of appeal. Greg James J (with Grove J and Dunford J agreeing) concluded that the complainant's credibility was the central issue at trial, and that the trial judge was plainly alive to this. The Court found that the evidence in cross-examination, where the complainant denied the appellant's version of events, was properly read as denials rather than concessions arising from faulty memory, notwithstanding her admitted intoxication.

On the credibility grounds, the Court rejected the appellant's submission that the complainant's answers in cross-examination should be understood as admissions that she had no memory sufficient to dispute the appellant's account. The Court considered the trial judge was entitled to treat those answers as confirmatory of her evidence-in-chief. Direct evidence from the complainant, together with powerful circumstantial evidence of lack of consent, supported the judge's conclusion.

The Court addressed the allegation of judicial bias separately, noting that criticisms about the manner in which a judge-alone reasons must be distinguished from allegations of actual bias or prejudice. A judge's comments in written reasons are not equivalent to directions to a jury, and the standard of analysis applied to each differs accordingly.

On the "unsafe and unsatisfactory" ground, the Court applied the established test: whether there exists a significant possibility that an innocent person has been convicted. Discrepancies or inconsistencies in evidence are not, by themselves, sufficient to meet that standard. Having assessed the whole of the evidence, the Court found no basis to apprehend that an innocent person had been convicted, and dismissed the appeal accordingly.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the "unsafe and unsatisfactory" ground requires more than pointing to discrepancies or inconsistencies in evidence; there must be a significant possibility that an innocent person has been convicted.
  • The same appellate test for an unsafe and unsatisfactory verdict applies whether the tribunal of fact is a jury or a judge sitting alone, as confirmed by reference to R v Kurtic (1996) 85 A Crim R 57.
  • A trial judge's written reasons in a judge-alone trial are not analogous to directions to a jury; accordingly, the way a judge expresses findings in reasons cannot simply be assessed against the standard applied to jury directions.
  • Allegations of judicial bias or prejudice carry a high threshold and are not made out merely by identifying aspects of a judgment that weigh against the accused.
  • Sufficient evidence existed, through both direct testimony and circumstantial evidence including the complainant's demeanour, to entitle the trial judge reasonably to reject the appellant's claim of consent and to accept the complainant's account.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Crimes Act 1900 (NSW), ss 61I, 61R, 405B

Cases:
- Fleming v The Queen (1998) 158 ALR 379
- Regina v Maxwell (CCA, 23 December 1998, unreported)
- Regina v Kurtic (1996) 85 A Crim R 57
- Regina v Ion (1996) 89 A Crim R 81
- Regina v Cable (1947) 47 SR(NSW) 183
- Regina v Lemura (CCA, 18 December 1998, unreported)
- Chidiac v The Queen (1991) 171 CLR 432
- M v The Queen (1994) 181 CLR 487
- Regina v Murray (1987) 11 NSWLR 12
- Crofts v The Queen (1996) 186 CLR 427
- Webb & Hayes v The Queen (1993-94) 181 CLR 41
- Reing v D (1997) 68 SASR 571
- Regina v Machin (1996) 68 SASR 536