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Court of Criminal Appeal 7 August 2000

Regina -v- Creed

[2000] NSWCCA 280

Sexual offences
CRIMINAL PROCEDURE REFUSAL OF DISCHARGE OF JURY

Citation: Regina v Creed [2000] NSWCCA 280
Court: Court of Criminal Appeal, New South Wales
Date: 7 August 2000
Judge(s): Sheller JA, Hulme J, Dowd J

Background

The appellant had been convicted in the District Court of a sexual offence. At trial, the Crown Prosecutor made general comments in address about reasons why a complainant might delay in making a complaint about a sexual assault, without any evidentiary basis in the particular case for those suggested reasons.

Defence counsel applied for the jury to be discharged as a result of those comments. The trial judge refused the application but indicated he would address the matter in the summing-up. In the summing-up, the judge reminded the jury there was no evidence of the complainant's motivation or mental processes, and left the question of reasons for delay to the jury. Defence counsel did not seek any redirection after the summing-up was delivered.

The appellant appealed against the conviction, raising the refusal to discharge the jury, the adequacy of the trial judge's directions following the Crown Prosecutor's address, and a further ground concerning the exclusion of evidence of a prior consistent statement.

  • Whether the Crown Prosecutor's comments about reasons for delayed complaint, made in address without evidentiary basis, were improper and required the jury to be discharged
  • Whether the trial judge's subsequent directions to the jury were adequate to remedy any prejudice caused by those comments
  • Whether the trial judge erred in excluding evidence of a prior consistent statement
  • Whether remarks by Wood CJ at CL in R v Williams [1999] NSWCCA 9, concerning the limits on suggesting reasons for delayed complaint, were correctly decided

Decision

The Court of Criminal Appeal dismissed the appeal by all three judges, substantially for the reasons given by Dowd J. The Crown conceded that the Crown Prosecutor's comments in address were inappropriate and infringed the requirements recognised in R v Williams. However, the court noted a significant distinction: Williams involved such comments made by the trial judge, not by counsel in address.

On the discharge application, Dowd J found that the trial judge's directions adequately placed the question of reasons for complaint in proper context. The fact that defence counsel sought no redirection after the summing-up was delivered was treated as evidence of the trial atmosphere and consistent with the adequacy of the directions given. The court found that no error had been demonstrated in the decision to refuse the discharge, nor in the balance achieved in the summing-up.

Hulme J added separate observations expressing considerable reservations about the correctness of certain remarks in R v Williams. His Honour noted tension between those remarks and the reasoning of the High Court majority in Crofts v R (1996) 186 CLR 427, which appeared to permit a trial judge to draw on ordinary human experience and suggest possible reasons for delayed complaint. Hulme J also noted that even if Williams were correctly decided, comments made in counsel's address carry considerably less weight than the words of a trial judge, and that mention of such matters in address would not readily amount to error creating substantial injustice.

On the prior consistent statement ground, the court found no error warranting intervention.

Orders Made

  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Crown Prosecutor's general comments about reasons for delayed complaint, made without evidentiary basis in the particular case, were inappropriate and inconsistent with requirements recognised in R v Williams.
  • A meaningful distinction exists between such comments being made by the trial judge and those made by counsel in address: the court treated the latter as carrying materially less weight and less likely to give rise to substantial injustice.
  • Refusing to discharge a jury following improper comments by the Crown Prosecutor will not constitute error where the trial judge's subsequent directions adequately contextualise the matter and defence counsel raises no objection after the summing-up.
  • Hulme J flagged unresolved tension between R v Williams and the High Court's reasoning in Crofts v R regarding the extent to which a trial judge may suggest possible reasons for a complainant's delay in complaining, though this tension was not necessary to resolve in order to dismiss the appeal.
  • In dismissing the appeal, the court applied the proviso to s 6 of the Criminal Appeal Act as an additional basis, finding that no substantial injustice had been demonstrated even on the assumption that Williams correctly stated the law.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), formerly s 405B(2)(b) (now replaced by s 107 Criminal Procedure Act 1986 (NSW))
- Evidence Act 1995 (NSW)
- Criminal Appeal Act (NSW), s 6

Cases:
- R v Williams [1999] NSWCCA 9
- Crofts v R (1996) 186 CLR 427
- R v Rawlings (unreported, NSWCCA, 10 December 1998)
- R v Blick (unreported, NSWCCA, 14 March 2000)
- Longman v The Queen (1989) 168 CLR 79
- R v George (1987) 9 NSWLR 527