Citation: Regina v Kneebone [1999] NSWCCA 279
Court: Court of Criminal Appeal, New South Wales
Date: 21 September 1999
Judges: Spigelman CJ, Greg James J, Smart AJ
Background
The appellant was convicted in the District Court on one count of sexual intercourse without consent in circumstances of aggravation under s 61J of the Crimes Act 1900. The complainant was under 16 years of age and under the appellant's authority at the time of the alleged offence. The appellant was acquitted on a second count of indecent assault involving the same complainant over an earlier period. Following conviction, he was sentenced to a minimum term of six years penal servitude with an additional term of three years.
A central figure in the case was the appellant's wife, who was also the complainant's mother. According to the complainant's own evidence at trial, the mother had been present in the house at the time of the alleged offence and had made a comment that bore directly on the complainant's account. Despite this, the Crown did not call the mother as a witness, and the defence did not call her either.
On appeal, unchallenged affidavit evidence from the mother, the appellant's barrister, and his solicitor was admitted by consent. This evidence addressed the circumstances surrounding the decision not to call the mother, the substance of what she could have said at trial, and the failure of defence counsel to seek certain directions on complaint evidence.
Legal Issues
- Whether the Crown's failure to call the appellant's wife (the complainant's mother) as a witness caused a miscarriage of justice
- Whether, in the alternative, the Crown's failure to make adequate enquiries about the mother's evidence and availability caused a miscarriage of justice
- Whether the trial judge's directions to the jury on complaint evidence were adequate
- Whether the trial judge erred in failing to give a warning under s 165 of the Evidence Act 1995 about the potential unreliability of the complainant's evidence
- Whether the verdict of guilty was unsafe or unsatisfactory in light of the acquittal on the second count and the reliance on the complainant's uncorroborated evidence
Decision
The Court allowed the appeal and ordered a new trial. The decisive ground was the Crown's failure to call the mother as a witness, or at minimum to conduct adequate enquiries before declining to do so. The Crown conceded on appeal that the mother was a material witness who had not been interviewed about the sexual assault allegations and that no adequate investigation had occurred. The Court accepted that this concession was fatal to the soundness of any decision not to call her.
The Court examined the principles from Apostilides (1984) 154 CLR 563 and Whitehorn (1983) 152 CLR 657, which address the Crown prosecutor's duty to seek a fair trial rather than simply to secure a conviction. Those principles confirm that the absence of a material witness's testimony can cause a miscarriage of justice even where no deliberate error has occurred. The mother was, apart from the appellant and the complainant, the only other person present in the house at the critical time. The complainant's own evidence had placed the mother at the scene and attributed a comment to her, making her evidence directly relevant to the central issues of credibility.
Smart AJ, in a detailed judgment, noted that the circumstances were unusual and that any decision about whether to call the mother could not be soundly based without first conducting an adequate investigation. The Court declined to express final views on the strength of the mother's potential evidence, noting that further investigation might also reveal other material. The overall conclusion was that the jury should have had the opportunity to assess the appellant, the complainant, and the mother together, and that the absence of the mother's evidence left consequential questions unanswered.
The Court did not need to determine the remaining grounds relating to the complaint directions and the s 165 warning in order to resolve the appeal, given the conclusion on the Crown's failure to call or adequately investigate the mother.
Orders Made
- Extension of time to appeal granted
- Appeal upheld
- New trial ordered
Key Takeaways
- The Court of Criminal Appeal confirmed that a Crown prosecutor's duty extends beyond seeking conviction: the prosecutor must take steps to secure a fair trial, which includes calling witnesses whose evidence is material to the issues, or at minimum conducting a proper investigation before declining to do so.
- Under the principles in Apostilides and Whitehorn, the absence of a material witness's testimony can cause a miscarriage of justice even without any deliberate wrongdoing or legal error by the prosecutor.
- Where the complainant's own evidence places a third party at the scene of the alleged offence and attributes conduct to that person bearing on the central allegations, that person is likely to be a material witness whom the Crown must genuinely investigate before deciding not to call.
- A decision by the Crown not to call a witness on the basis that they are not a witness of truth cannot be soundly made without first conducting a proper enquiry, including conferring with that witness or otherwise establishing an adequate evidentiary basis for the refusal.
- Conceding on appeal that a material witness was never interviewed about the subject allegations was, in the circumstances of this case, sufficient to establish that the Crown's decision not to call that witness was insufficiently grounded, resulting in a miscarriage of justice.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M
- Evidence Act 1995 (NSW), s 165
- Criminal Appeal Act 1912 (NSW)
Key Cases:
- Apostilides (1984) 154 CLR 563
- Whitehorn (1983) 152 CLR 657
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 275
- Fleming v R (1998) 158 ALR 379
- Murray (1987) 11 NSWLR 12
- Graham (1998) 157 ALR 404
- Chidiac (1991) 171 CLR 432
- Souleyman (1996) 40 NSWLR 712
- Williams [1999] NSWCCA 9
- Dwyer [1999] NSWCCA 47