Citation: Regina v Robinson [1999] NSWCCA 172
Court: NSW Court of Criminal Appeal
Date: 2 July 1999
Judge(s): Grove J, Abadee J, Barr J
Background
The appellant was a former priest and Superior in a now-disbanded religious order, who faced separate trials arising from complaints made by four men. Juries in the first and third trials were unable to reach verdicts, and the Director of Public Prosecutions declined to proceed further on those matters. The second and fourth trials resulted in convictions, and the appellant challenged both on appeal.
The second trial concerned an indecent assault charge under s 81 of the Crimes Act 1900, alleged to have occurred between September and October 1981 involving a novice in the order. The prosecution case rested entirely on the complainant's testimony. The appellant did not give or call evidence at either trial.
The fourth trial concerned a single count of an act of indecency under s 81A of the Crimes Act 1900, alleged to have occurred between April and September 1979. The sentence imposed for this conviction was ordered to run concurrently with part of the sentence imposed following the second trial.
Legal Issues
- Whether the trial judge in the second trial erred by failing to direct the jury on the use it could make of the appellant's good character, given that evidence of no prior convictions had emerged during cross-examination of a police officer
- Whether the trial judge erred in handling pre-trial publicity and media coverage, and in refusing to adjourn proceedings
- Whether the directions on complaint evidence, delay, and the credibility warning were adequate
- Whether the verdicts in either trial were unsafe and unsatisfactory
Decision
The central ground that succeeded in the second trial concerned good character. During cross-examination of the police officer called by the prosecution, it was confirmed that the appellant had no prior convictions. Although neither the prosecution nor the defence specifically asked for a direction on good character, the Court of Criminal Appeal held that once evidence of good character is before the jury, the trial judge is obliged to direct the jury on the use that may properly be made of it. No such direction was given. Grove J concluded that this failure constituted a material misdirection that could not be cured by the application of the proviso.
On the remaining grounds in the second trial, the Court found no error. The trial judge's refusal to adjourn in response to pre-trial publicity was a proper exercise of discretion, supported by firm directions to the jury. Directions concerning complaint evidence, tendency evidence, the scrutiny of the complainant's evidence, and delay were all found to be adequate in the circumstances, particularly noting that trial counsel had made no applications for further or different directions on those issues.
The appeal against the conviction in the fourth trial was dismissed in its entirety. The Court rejected grounds concerning delay, the absence of a corroboration warning, and the overall safety of the verdict. Noting that the jury had the benefit of observing all witnesses directly, the Court was unpersuaded that the jury ought to have had a doubt about the appellant's guilt on that count.
The Court declined to order a new trial in respect of the second trial, instead entering a verdict and judgment of acquittal. As the sentence for the fourth trial conviction had been served concurrently and was spent, and no other reason for continued detention was identified, the Court ordered the appellant's immediate release.
Orders Made
- Appeal in respect of the second trial allowed; conviction and sentence quashed; no new trial ordered; verdict and judgment of acquittal entered
- Appeal in respect of the fourth trial dismissed; conviction and sentence confirmed
- Appellant ordered released forthwith
Key Takeaways
- Once evidence of good character is placed before a jury, whether by the defence or through cross-examination by the prosecution, the trial judge has an obligation to direct the jury on how that evidence may be used. Failure to give such a direction can constitute a material misdirection warranting intervention on appeal.
- The obligation to direct on good character is not conditional on a formal application by counsel. The Court of Criminal Appeal confirmed the duty arises from the fact that the evidence is before the jury, regardless of how it came to be there.
- In dismissing the fourth trial appeal, the Court confirmed that the absence of a delay direction does not automatically constitute appealable error. Whether such a warning is required depends on the circumstances of the particular case, including how the defence was conducted.
- A trial judge's refusal to adjourn proceedings in response to pre-trial media publicity will not be disturbed on appeal where firm and repeated directions were given to the jury about the need to decide the case on evidence before the court alone.
- Where the Court of Criminal Appeal allows an appeal due to misdirection, it retains a discretion not to order a new trial and may instead enter a verdict of acquittal, which it exercised here in respect of the second trial conviction.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 81, 81A
- Evidence Act 1995 (NSW)
- Criminal Appeal Act (NSW), s 6
Cases Cited
- R v Murray (1987) 11 NSWLR 12
- R v Andrews (1982) 2 NSWLR 116
- R v Murphy (1985) 4 NSWLR 42
- R v Stalder (1981) 2 NSWLR 9
- R v Gillard, NSW Court of Criminal Appeal, 15 July 1991
- R v Groves, NSW Court of Criminal Appeal, 20 June 1986
- R v Piazza, NSW Court of Criminal Appeal, 16 June 1997
- R v Johnston (1998) 45 NSWLR 362