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7
Court of Criminal Appeal 10 December 1999

REGINA v. WALTON

[1999] NSWCCA 452

Also reported as (1999) 113 A Crim R 308
Sexual offences
CRIMINAL LAW APPEAL EVIDENCE COMPLAINT ADMISSIBILITY PRINCIPLE IN GRAHAM (1998) 157 ALR 404 CONDUCT OF CROWN PROSECUTOR

Citation: Regina v Walton [1999] NSWCCA 452
Court: Court of Criminal Appeal, New South Wales
Date: 10 December 1999
Judge(s): Beazley JA, Newman J, Greg James J

Background

The appellant was convicted in the District Court of one count of indecent assault of a girl under 16 years, contrary to s 61M(1) of the Crimes Act 1900. The jury acquitted him on a second, related count involving the same complainant. The alleged offending took place over Easter 1996, and the complainant did not speak about the events to anyone until approximately four to five months later.

The prosecution led complaint evidence through a school friend of the complainant, who testified about what the complainant had told her in September 1996. No objection was taken to this evidence at trial and no formal application for leave to adduce it was made. The trial pre-dated the High Court's decision in Graham v The Queen (1998) 157 ALR 404, which clarified the admissibility of prior consistent statements.

On appeal, the appellant challenged the admission of the complaint evidence, the trial judge's directions about evidence given by the appellant's daughter, and the conduct of the Crown Prosecutor's address to the jury.

  • Whether the trial judge erred in admitting the complaint evidence from the school friend, given the principles later confirmed in Graham
  • Whether the trial judge's directions concerning the appellant's daughter's evidence were adequate
  • Whether the Crown Prosecutor's address to the jury gave rise to a miscarriage of justice
  • Whether, where a miscarriage was substantially caused by the Crown Prosecutor's own conduct, the appropriate remedy was a new trial or an acquittal

Decision

The Court found error in the admission of the complaint evidence. The direction given to the jury characterised the complaint as establishing consistency of conduct, but the Court identified problems with both the basis on which it was admitted and the adequacy of the directions given in relation to it. The trial occurred before Graham settled the applicable principles governing prior consistent statements, and the complaint evidence was not properly dealt with in accordance with those principles.

The third and most significant ground concerned the Crown Prosecutor's conduct during address. The Court found the prosecutor's address was contrary to standards of fairness, the Bar Rules, and the Prosecution Guidelines. Greg James J described the conduct as a serious irregularity and found that the trial judge's directions were entirely inadequate to cure it. The Court referred to the principles in Kneebone [1999] NSWCCA 279 and confirmed that a Crown Prosecutor's general obligation to act fairly cannot be displaced by any licence to disregard adverse evidence or avoid appropriate challenges.

On remedy, the Court noted that the jury had acquitted on one count while convicting on the other, a result Greg James J found difficult to explain satisfactorily. Taking into account the intrinsic inconsistencies in the complainant's evidence, the principles in King v The Queen (1986) 161 CLR 423 and Parker v The Queen (1997) 186 CLR 494, and critically, that the miscarriage arose from the Crown Prosecutor's own conduct at trial, the Court concluded that ordering a new trial would be inappropriate. An acquittal was entered instead.

Orders Made

  • Appeal upheld
  • Conviction and sentence quashed
  • Verdict and judgment of acquittal entered

Key Takeaways

  • A Crown Prosecutor's obligation to act fairly is not merely aspirational: the Court of Criminal Appeal confirmed it is a binding standard, departure from which can constitute a serious trial irregularity sufficient to vitiate a conviction.
  • Where a miscarriage of justice is substantially attributable to the Crown Prosecutor's own improper conduct, the principles in King and Parker support entering an acquittal rather than ordering a new trial.
  • Complaint evidence led as prior consistent statement must conform with the principles in Graham v The Queen; directions to the jury must address its proper, limited purpose and adequately protect the accused.
  • Insufficient or inadequate judicial directions cannot always cure improper Crown address, particularly where the irregularity is serious and the directions given do not constitute an appropriate "antidote."
  • The Court's exercise of discretion against retrial reflects that the criminal justice system should not afford the prosecution a second opportunity where the first trial miscarried through prosecutorial fault.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(1)
- Evidence Act 1995 (NSW)

Cases
- Graham v The Queen (1998) 157 ALR 404
- Regina v Crofts (1996) 186 CLR 427
- Kneebone [1999] NSWCCA 279
- Apostilides (1983-84) 154 CLR 563
- Jones v The Queen (1997) 149 ALR 598
- King v The Queen (1986) 161 CLR 423
- Parker v The Queen [1997] HCA 13; (1997) 186 CLR 494
- James [1999] NSWCCA 191
- Allied Pastoral Holdings Pty Limited v Commissioner of Taxation (1983) 1 NSWLR 1
- Gillard [1999] NSWCCA 21; Dwyer [1999] NSWCCA 47; RNS [1999] NSWCCA 122; Whitmore [1999] NSWCCA 247; DWH [1999] NSWCCA 255