Citation: R v Johnson [2000] NSWCCA 474
Court: New South Wales Court of Criminal Appeal
Date: 21 November 2000
Judge(s): Heydon JA; Studdert J; Greg James J
Background
The appellant was convicted by a jury in the District Court on three counts of indecently assaulting a person under the age of 16 years. The complainant was his niece, and the alleged conduct occurred between approximately 1988 and 1993. She reported the matter to her mother and then to police in 1997, many years after the events.
At trial, the accused was acquitted of a separate charge of sexual intercourse without consent but convicted on all three indecent assault counts. He was sentenced to concurrent terms of 15 months imprisonment with an additional term of 12 months, and was ordered to be released on parole.
On appeal, the appellant was represented by different counsel from trial. The central argument was that the trial judge's summing up failed to adequately put the defence case to the jury, particularly in relation to inconsistencies in the complainant's evidence and the alleged improbabilities in her account.
Legal Issues
- Whether the trial judge's summing up adequately presented the defence case to the jury, including specific inconsistencies between the complainant's trial evidence and her earlier police statement.
- Whether the failure to recite specific defence arguments in the summing up resulted in an unfair trial.
- Whether the conviction should be set aside on the basis of a deficient summing up.
Decision
Heydon JA (with Studdert J and Greg James J agreeing) dismissed the appeal. The Court acknowledged the general principle that a trial judge bears responsibility for putting the defence case in a summing up, and that it is insufficient to simply refer back to counsel's addresses. However, the Court found that the trial judge had sufficiently identified the nature of the defence case and its bearing on the central question before the jury.
The Court noted several contextual factors that weighed against the appeal. Defence counsel at trial had cross-examined the complainant with vigour and had addressed the jury at length on the very morning the judge delivered her summing up. Repeating those specific points in the summing up, the Court observed, might have blunted rather than sharpened their effect.
The Court also observed that the evidentiary conflict in this case was limited in scope. Beyond the tension between the complainant's evidence and that of the accused's wife, there was relatively little conflicting testimony from multiple witnesses. In those circumstances, a detailed issue-by-issue rehearsal of competing evidence, of the kind required in more complex matters, was not necessary to ensure a fair trial.
The Court accepted that a fuller, more specific summing up might have been useful had it been requested. However, the standard to be met was whether the accused received a fair trial according to law, and on the particular facts of this case, that standard was satisfied.
Orders Made
- Appeal dismissed.
Key Takeaways
- A trial judge is obliged to put the defence case in a summing up, but that obligation does not invariably require a point-by-point recitation of every inconsistency or improbability highlighted in defence counsel's final address.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the adequacy of a summing up must be assessed in light of the particular circumstances of the trial, including the nature and extent of the evidentiary conflict.
- Where the only significant evidentiary conflict is between two witnesses (here, the complainant and the accused's wife), the case for a detailed, issue-by-issue analysis in the summing up is weaker than in trials involving multiple competing witnesses.
- No error was established merely because the summing up could have been fuller or more specific, provided the jury was adequately directed on the need to be satisfied beyond reasonable doubt on the basis of the evidence as a whole.
- The fact that different counsel appeared on appeal, raising arguments not ventilated at trial, does not automatically establish a deficiency in the summing up; the absence of any objection at trial is a relevant contextual consideration.
Legislation and Cases Referenced
Cases Cited:
- Basto v R (1954) 91 CLR 628
- R v Veverka [1978] 1 NSWLR 478
- R v Amado-Taylor [2000] 2 Cr App R 189
- R v Williams (1999) 104 A Crim R 260
- R v Tomazos (CCA, unreported, 6 August 1979)
Legislation: No specific legislation was identified in the provided text of the judgment.