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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: Regina v Flood [1999] NSWCCA 198
Court: Court of Criminal Appeal, New South Wales
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. The complainant had physical disabilities, including pelvic injuries, and the defence raised concerns during the trial about her cognitive and memory function.

At trial, defence counsel sought a direction under s 165(1)(c) of the Evidence Act 1995, which applies where evidence may be unreliable due to ill health, mental or physical injury, or the like. The trial judge declined to give the warning, finding on his own observations of the complainant during her evidence that nothing indicated her reliability was affected by her disabilities.

The appellant brought five grounds of appeal against conviction, challenging the adequacy of several jury directions and arguing the verdict was unsafe and unsatisfactory.

  • Whether the trial judge was required to give a jury warning under s 165(2) of the Evidence Act 1995 that the complainant's evidence may be unreliable because of physical or mental disability
  • Whether the trial judge's failure to direct the jury to disregard his own opinions about the facts rendered the summing-up defective
  • Whether the trial judge was required to direct the jury on the law of withdrawal of consent
  • Whether the trial judge was required to direct the jury on the use that could be made of evidence of complaint
  • Whether the verdict was unsafe and unsatisfactory

Decision

On the s 165 warning (Ground 1): The court was divided in its reasoning but unanimous in outcome. Spigelman CJ (Bell J concurring) held that s 165 requires a threshold finding of fact: the trial judge must determine, on the balance of probabilities, whether the reliability of the evidence "may be affected" by a relevant condition. The trial judge was entitled to make that threshold finding by relying on his own observations of the complainant during her hours of evidence in court, and he found no such effect was demonstrated. Spigelman CJ characterised any error in that finding as an error of fact, not an error of law, and therefore not a "wrong decision on any question of law" under s 6(1) of the Criminal Appeal Act 1912.

Spigelman CJ also held, in the alternative, that even if the threshold had been reached, the trial judge had "good reasons" under s 165(3) for not giving the warning in statutory form. In a case where the reliability of a single witness was the kernel of the Crown's case, the judge's intention to address reliability through detailed summing-up directions, rather than by reciting the statutory formula, was capable of constituting such good reasons. Smart AJ took a different path, finding that the trial judge did err in not recognising the complainant's evidence as potentially unreliable, but agreed no new trial was warranted given the directions that were actually given and the jury's own opportunity to observe the witness.

On the remaining grounds: The court held that no direction on withdrawal of consent was required on the evidence, as there was no reasonable possibility raised that the complainant had consented and then withdrawn consent. The summing-up was not defective for failing to expressly direct the jury to disregard the judge's opinions, as the judge had made clear from the outset that the jury were the sole judges of fact. No direction on complaint evidence was required in the circumstances. Leave to raise grounds 2, 3 and 4 was refused, as none had been taken at trial and each failed on its merits.

On the unsafe and unsatisfactory verdict ground: The court found the Crown case, particularly on the second count, was a strong one. The surrounding circumstances, the complainant's immediate complaint, and the appellant's own version of events all supported the verdict. No miscarriage of justice was established.

Orders Made

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

Key Takeaways

  • Under s 165 of the Evidence Act 1995, a trial judge must first make a threshold factual finding, on the balance of probabilities, that evidence "may be affected" by a relevant condition before the obligation to warn arises; the Spigelman CJ majority held that this is a finding of fact, not law, and is assessed under s 142 of the Act.
  • A trial judge's direct observations of a witness during evidence can constitute a sufficient basis for concluding that the reliability threshold under s 165(1)(c) has not been met, at least where no medical evidence to the contrary is before the court.
  • Even where the s 165(1) threshold is reached, s 165(3) preserves a discretion to refrain from giving the prescribed warning if "good reasons" exist; detailed jury directions addressing reliability in the summing-up can constitute such good reasons, particularly where the single witness's credibility is central to the Crown case.
  • In dismissing the appeal on the summing-up grounds, the court confirmed that a clear direction at the outset of trial that the jury are the sole judges of fact can be sufficient to address concerns about the judge expressing views on the evidence, without requiring a separate express direction to disregard those views.
  • No new trial was ordered despite the divergence in the judges' reasoning on the s 165 question, reflecting the court's assessment that the overall conduct of the trial, and the strength of the Crown case, precluded any finding of miscarriage of justice.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 142, 165
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- Waterford v The Commonwealth (1986-87) 163 CLR 54
- R v BD 94 ACrimR 131
- Bruce v Cole (1998) 45 NSWLR 163
- Connolly v "Sunday Times" Publishing Co Ltd (1908) 7 CLR 263
- Greenly v Lawrence [1949] 1 All ER 241
- Irving v Carbines [1982] VR 861
- Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597
- Ramsay v Madgwicks [1989] VR 1