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Court of Criminal Appeal 30 October 2000

Regina v A R D

[2000] NSWCCA 443

Sexual offencesPublic order & justice offences
CRIMINAL LAW APPEAL VERDICT WHETHER UNSAFE OR UNSATISFACTORY ROLE OF APPELLATE COURT CONDUCT OF LEGAL PRACTITIONER

Citation: Regina v A R D [2000] NSWCCA 443
Court: NSW Court of Criminal Appeal
Date: 30 October 2000
Judge(s): Spigelman CJ; Newman J; Adams J

Background

The appellant was convicted in the District Court of multiple offences, including sexual offences and a charge of attempting to pervert the course of justice. The trial was presided over by Moore DCJ. The appellant challenged the convictions on several grounds.

The appeal raised questions about the safety of the verdicts, alleged incompetence of trial counsel, the proper direction a jury should receive when a complainant's evidence is the sole direct evidence, and whether a charge of attempting to pervert the course of justice was duplicitous.

  • Whether the verdicts were unsafe or unsatisfactory, particularly given that the jury acquitted on some counts while convicting on others involving the same complainant
  • Whether the trial judge was required to direct the jury, following Jones v The Queen (1997) 191 CLR 439, that an acquittal on one count may affect the credibility of the complainant on remaining counts
  • Whether incompetence of trial counsel warranted the convictions being set aside
  • Whether the charge of attempting to pervert the course of justice (Count 21) was duplicitous, in that the jury may not have been unanimous as to which specific act constituted the offence

Decision

Ground 1 (unsafe or unsatisfactory verdicts): The Court dismissed this ground for the reasons given by Newman J.

Ground 2a (Jones direction): The Court held that Jones v The Queen does not establish a mandatory direction requiring a trial judge to instruct the jury that an acquittal on one count must affect the assessment of the complainant's evidence on other counts. The High Court in Jones was addressing the particular facts of that case, not laying down a universal rule. The Court accepted that, in appropriate cases, it will be prudent and sometimes necessary for a trial judge to assist the jury by drawing attention to the potential effect of a partial acquittal on a complainant's overall credibility. However, whether such a direction is required depends on the circumstances, including whether other evidence distinguishes the counts.

Counsel incompetence: The Court considered the relevant principles governing allegations of incompetence by trial counsel, but ultimately dismissed the appeal on this ground.

Count 21 (duplicity in the perverting justice charge): This ground succeeded. The Court found, applying KBT v The Queen (1996-97) 191 CLR 417 and R v Morex Meat Australia Pty Ltd (1995) 78 A Crim R 269, that where conviction depends on proof of one or more distinct alleged lies put to a witness, unanimity on the ultimate conclusion does not overcome the problem that jurors may not have been unanimous as to which specific act formed the basis for the conviction. Because the jury had not been directed to agree on the particular lie they found proven, the conviction on Count 21 could not stand. The error on Count 21 did not, however, infect the other convictions.

Orders Made

  • Appeal on Count 21 allowed; conviction quashed; new trial ordered on Count 21
  • Appeal otherwise dismissed

Key Takeaways

  • Jones v The Queen does not require a mandatory direction in every sexual assault trial where the complainant is the sole direct witness. The Court of Criminal Appeal confirmed that the question of whether such a direction is appropriate remains fact-specific.
  • Where a jury acquits on one count, there is no automatic rule that convictions on other counts involving the same complainant are thereby rendered unsafe. Indirect or contextual evidence may lawfully differentiate the counts in the jury's assessment.
  • A direction drawing the jury's attention to the possible effect of a partial acquittal on overall witness credibility will often be prudent, and sometimes necessary, but is not invariably required by law.
  • On charges of attempting to pervert the course of justice, where the Crown alleges multiple distinct acts, the jury must be directed to agree on which specific act (or acts) it accepts as proven. Unanimity on the ultimate verdict alone is insufficient if the underlying factual basis for that verdict was not identified with sufficient precision.
  • In dismissing most grounds of appeal, the Court confirmed that incompetence of trial counsel requires more than a showing of poor tactical choices; the relevant principles set a high threshold before such a ground will succeed.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Crimes Act 1900 (NSW)
- Crimes Act 1914 (Cth)

Cases:
- Jones v The Queen (1997) 191 CLR 439
- KBT v The Queen (1996-97) 191 CLR 417
- MacKenzie v The Queen (1996) 190 CLR 348
- Lucas v The Queen (1969-70) 120 CLR 171
- Fleming v The Queen (1999) 197 CLR 250
- R v RAT [2000] NSWCCA 77
- R v Robinson [2000] NSWCCA 59
- R v Morex Meat Australia Pty Ltd (1995) 78 A Crim R 269
- R v Crisologo (1997) 99 A Crim R 178
- R v M (1994) 181 CLR 487
- R v Birks (1990) 19 NSWLR 677
- R v Merriman [1973] AC 584
- Meissner v The Queen (1995) 80 A Crim R 308
- Stanton v Abernathy (1990) 19 NSWLR 656
- R v Giam [1999] NSWCCA 53
- R v Hamzy (1994) 74 A Crim R 341