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Court of Criminal Appeal 15 February 2000

REGINA v. HUGHES

[2000] NSWCCA 3

Sexual offences
CRIMINAL LAW APPEAL TIME AND PLACE OF OFFENCE

Citation: Regina v Hughes [2000] NSWCCA 3
Court: NSW Court of Criminal Appeal
Date: 15 February 2000
Judge(s): Grove J, Hidden J, Greg James J

Background

The appellant was convicted in the District Court on six counts of buggery alleged to have been committed between 31 December 1978 and 30 June 1979, at a grocery shop in Vaucluse and at a residential flat in Bondi. The complainant gave evidence that the offences occurred while he was employed by the appellant at the grocery shop, having seen a job advertisement in the shop window. A witness named Harper corroborated the timing and circumstances of the complainant's employment.

At trial, the defence challenged the Crown's case on the basis that the appellant had not acquired the grocery shop until April 1981, and therefore could not have committed the offences at that location in 1979. The appellant produced documents to support this timeline, including what purported to be a bill of sale, a Corporate Affairs Commission return, and cheque butts. The Crown responded by suggesting these documents had been fabricated or back-dated.

The trial judge directed the jury that the real issue was whether the appellant was running the business in 1979, and that the absence of independent records, such as tax records or evidence from the prior owner, allowed the jury to be satisfied beyond reasonable doubt on the Crown's evidence. The appellant was convicted on all counts and sentenced to a minimum term of three years penal servitude with an additional term of three years. He appealed to the Court of Criminal Appeal.

  • Whether the time and place of the alleged offences, not formally essential elements of the charges, had become critical to the prosecution case by reason of how the trial was conducted.
  • Whether fresh evidence, unavailable at trial, established a miscarriage of justice.
  • Whether, if a miscarriage was established, the appropriate remedy was acquittal or a new trial.

Decision

Greg James J, with whom Grove J and Hidden J agreed, held that the time and place of the offences had become practically essential to the complainant's credibility by reason of how both parties conducted the trial. Although time and place were not formal elements of the offences charged, the Crown's case depended on the jury accepting the complainant's evidence, and that evidence was anchored to specific circumstances at a specific location in 1979. The defence directly challenged those circumstances, and the trial judge's summing-up reinforced the centrality of that issue.

The Court accepted that fresh evidence had emerged after the verdict. That evidence was relevant to the credit of the complainant and bore on the contested question of when the appellant had access to the grocery shop. The Court found that the absence of this material at trial had caused a miscarriage of justice, applying the principle from the Court of Criminal Appeal's earlier decision in VHP that where a particular fact has been made crucial by the conduct of the trial, the Crown's failure to establish it can amount to a miscarriage.

On the question of remedy, the Court found that the fresh evidence adversely affected the complainant's credibility but did not entirely dispose of it. The verdict was not one that no jury could properly reach. A new trial was therefore the appropriate order rather than an acquittal.

Greg James J noted that, while the Crown might theoretically argue the offences occurred at a different date, that course appeared practically unavailable. The indictment had not been amended, and the Crown's own case had specifically excluded 1981 as a possible date. His Honour observed, without deciding the question, that the Director of Public Prosecutions would need to consider whether to proceed given the age of the matters and the strength of the witnesses' assertions about 1979.

Orders Made

  • Leave to rely on fresh evidence granted, with that evidence admitted.
  • Leave to appeal granted to the extent necessary.
  • Appeal upheld.
  • New trial ordered.

Key Takeaways

  • Where the conduct of a trial elevates an otherwise inessential fact, such as the time or place of an alleged offence, to a matter practically essential to the credibility of the Crown case, the Crown's failure to establish that fact can constitute a miscarriage of justice.
  • Fresh evidence that adversely affects a complainant's credibility may be sufficient to ground a miscarriage of justice, even where the evidence does not wholly destroy that credibility or render the original verdict unreasonable.
  • A new trial, rather than an acquittal, is the appropriate remedy where the miscarriage arises from absent evidence rather than from a finding that no reasonable jury could convict.
  • The Court of Criminal Appeal confirmed the principle from VHP (CCA, unreported 7 July 1997) that particulars made crucial by the conduct of trial carry a different weight than those that remain truly peripheral.
  • Practical constraints on the Crown's ability to reformulate its case at a retrial, such as the prior exclusion of alternative dates and the absence of an amended indictment, are relevant considerations when the Court exercises its discretion to order a new trial.

Legislation and Cases Referenced

Cases:
- The Queen v VHP (NSW Court of Criminal Appeal, unreported, 7 July 1997)
- Saleam (1989) 16 NSWLR 14

Legislation: No specific legislation was cited in the judgment.