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Court of Criminal Appeal 23 July 1999

REGINA v FLOOD

[1999] NSWCCA 198

Sexual offences
CRIMINAL LAW EVIDENCE DIRECTIONS USE TO WHICH EVIDENCE MAY BE PUT CRIMINAL LAW VERDICT UNSAFE AND UNSATISFACTORY

Citation: [1999] NSWCCA 198
Court: Court of Criminal Appeal
Date: 23 July 1999
Judge(s): Spigelman CJ, Bell J, Smart AJ

Background

The appellant was convicted in the District Court of sexual intercourse without consent in circumstances of aggravation, arising from an incident on 28 November 1996. The complainant was a 39-year-old woman who, following a serious car accident in 1973, lived with significant physical disabilities, a generalised intellectual deficit, memory difficulties, and intermittent psychiatric symptoms including auditory hallucinations.

The central factual dispute at trial was whether the complainant consented to intercourse. The appellant acknowledged that intercourse occurred but maintained it was consensual. The complainant gave evidence over several sessions, during which she became fatigued, confused, and at points expressed difficulty giving accurate responses.

The appellant challenged his conviction on five grounds, including the trial judge's refusal to warn the jury under s 165(1)(c) of the Evidence Act 1995 that the complainant's evidence may be unreliable, alleged deficiencies in the summing-up, and a contention that the verdict was unsafe and unsatisfactory.

Legal Issues

  • Whether the trial judge erred in refusing to direct the jury under s 165(1)(c) of the Evidence Act 1995 that the complainant's evidence may be unreliable due to her mental or physical health
  • Whether the trial judge erred in failing to direct the jury on how to use evidence of complaint
  • Whether the summing-up unfairly favoured the prosecution, and whether the jury should have been expressly directed to disregard the judge's opinions unless they accorded with their own
  • Whether the trial judge erred in declining to direct the jury on the law of withdrawal of consent, following a question from the jury
  • Whether the verdict was unsafe and unsatisfactory

Decision

Ground 1: Unreliable evidence warning under s 165(1)(c)

The majority (Spigelman CJ and Bell J) held that the trial judge was entitled to find, based on his own observations of the complainant in the witness box, that her evidence was not shown to "may be affected" by mental or physical ill health within the meaning of s 165(1)(c). That finding was one of fact, not law. Following Waterford v The Commonwealth (1986-87) 163 CLR 54, a wrong finding of fact does not constitute a "wrong decision on any question of law" under s 6(1) of the Criminal Appeal Act 1912, and no legal error in the fact-finding process was identified.

The majority also found an alternative basis for dismissing this ground. Even if the threshold under s 165(1) had been reached, the trial judge's evident intention to address reliability through detailed and tailored directions in his summing-up, rather than by reciting the statutory formula, was capable of constituting "good reasons" under s 165(3) for refraining from giving the warning. The phrase "good reasons" in s 165(3) confers a discretion on the trial judge, and the decision to exercise it in this way was open.

Smart AJ reached a different conclusion on the threshold question, finding that the evidence of the complainant's memory problems and cognitive impairments did provide a sufficient basis for a s 165 warning to be given. His Honour nonetheless declined to grant a new trial. The judge's summing-up had directed the jury to scrutinise the complainant's evidence carefully in light of her medical condition, the reliability issues had been thoroughly exposed during the trial, and the jury had directly observed her difficulties. In those circumstances, Smart AJ concluded that no miscarriage of justice had occurred.

Ground 2: Use of complaint evidence

The trial judge did not give the jury a formal direction on how to use evidence of the complainant's complaints to others. The court noted that no such direction had been sought at trial, and that the complaints were used in the summing-up primarily to establish consistency of conduct rather than as evidence of the truth of the allegations. The appellant would not have benefited from a more expansive direction in the circumstances. The ground was refused leave and failed on its merits.

Ground 3: Pro-prosecution summing-up and failure to direct jury to disregard the judge's opinions

The court acknowledged that the summing-up was favourable to the prosecution, but found that the trial judge had put the defence case fully. Critically, the judge had directed the jury at the outset, and again at the commencement of the summing-up, that they were the sole judges of all questions of fact and that his own views were irrelevant. Those directions were sufficient to convey that the jury's assessment alone determined the outcome, without requiring the use of any specific formula. This ground failed.

Ground 4: Withdrawal of consent

Following the jury's retirement, a juror raised a question about withdrawal of consent. The trial judge, with the agreement of both counsel, told the jury there was no evidence that the complainant had consented and then withdrawn her consent. The court agreed with that assessment. On the evidence, there was no reasonable possibility the jury could have found that a sequence of consent followed by withdrawal occurred. The ground failed.

Ground 5: Unsafe and unsatisfactory verdict

The court examined the totality of the evidence relating to the 28 November 1996 incident and found the Crown case was a strong one. The circumstances, including the appellant's own admissions in his record of interview about the complainant's initial reluctance, his rapid departure, the complainant's condition when her friend arrived shortly afterward, and the minor physical injuries, combined to present a compelling picture inconsistent with consent. No miscarriage of justice was established.

Orders Made

  • Leave to raise grounds 2, 3, and 4 refused
  • Appeal dismissed

Key Takeaways

  • A trial judge's finding that a witness's evidence does not fall within s 165(1)(c) of the Evidence Act 1995 (i.e. that reliability is not shown to "may be affected" by mental or physical ill health) is a finding of fact; an appellate court cannot intervene merely because it would have reached a different factual conclusion.
  • Even where the s 165(1) threshold is met, the discretion under s 165(3) to refrain from giving a warning where "there are good reasons for not doing so" may be satisfied by a trial judge's intention and actual delivery of detailed, tailored summing-up directions that address the reliability concern in substance.
  • The formula "good reasons" in s 165(3) confers a discretion on the trial judge; the Australian Law Reform Commission described the s 165 scheme as a "guided discretionary approach", and appellate intervention with such decisions is limited.
  • Where reliability issues are extensively exposed in the evidence, the jury has directly observed the witness's difficulties, and the summing-up requires careful scrutiny of the witness's evidence in light of those difficulties, the failure to give a formal s 165 warning may not constitute a miscarriage of justice.
  • A direction at the outset of trial and at the start of the summing-up that the jury alone are the judges of all facts, and that the trial judge's views are irrelevant, may be sufficient to avoid any deficiency arising from the absence of a specific direction to disregard the judge's opinions.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated