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Court of Criminal Appeal 23 November 2000

R v Kennedy

[2000] NSWCCA 487

Also reported as [2000] 118 A Crim R 34
Sexual offences
CRIMINAL LAW SUMMING UP SEXUAL OFFENCES CHARGED

Citation: R v Kennedy [2000] NSWCCA 487
Court: Court of Criminal Appeal, New South Wales
Date: 23 November 2000
Judge(s): Heydon JA, Studdert J, Greg James J

Background

The appellant was the stepfather of the complainant, who alleged he had committed two acts of non-consensual sexual intercourse against her: one when she was approximately twelve years old in 1981, and one in June 1986. The 1986 offence resulted in a pregnancy, and the appellant acknowledged paternity of three children born to the complainant. The charges were not brought to trial until February 2000, some two decades after the first alleged offence.

The trial was conducted in the Dubbo District Court before Bell DCJ. The jury convicted the appellant on Count 1 (sexual intercourse without consent, 1981 to 1983) and Count 3 (sexual intercourse without consent, June 1986). He was sentenced to two years and eight months imprisonment on each count, with a non-parole period of eighteen months.

The appellant raised ten grounds of appeal in his filed grounds, and sought to rely on an eleventh additional ground. Several grounds related to the conduct of the Crown Prosecutor at trial, while others concerned the adequacy of the trial judge's directions to the jury.

  • Whether the conduct of the Crown Prosecutor at trial amounted to a miscarriage of justice
  • Whether the trial judge's directions on lies and consciousness of guilt were adequate
  • Whether the trial judge adequately directed the jury on the effects of delay in complaint and delay between the alleged offences and trial
  • Whether a new trial should be ordered or verdicts of acquittal entered

Decision

The Court of Criminal Appeal allowed the appeal on multiple grounds. The Crown Prosecutor's conduct at trial was identified as one of the reasons the trial had miscarried, consistent with the approach taken in the earlier case of R v Walton. The court noted that Crown counsel appearing on appeal (who had not appeared at trial) adopted a responsible and honourable approach to the issues, a matter expressly commended by Heydon JA.

The Court found that the trial judge's directions to the jury concerning lies and consciousness of guilt were inadequate. Proper directions on this topic are important because a jury must understand the limited and specific use to which evidence of a defendant's lies can be put when assessing guilt. The directions given fell short of what was required.

The Court also found the summing-up deficient in its treatment of delay. In sexual offence cases, particularly those involving historical allegations, the judge must warn the jury about the difficulties that delay in complaint and delay before trial can create for an accused person's ability to defend themselves. The directions given did not adequately address these considerations.

On the question of a new trial, the Court declined to order one. Two factors were determinative: the trial had miscarried partly due to the Crown Prosecutor's own conduct, and the matter was already very old, with the alleged offences dating back nearly two decades. Further delay from a retrial would compound an already significant passage of time. The Court concluded that it was not appropriate to order a new trial on the amended indictment, and instead entered verdicts and judgments of acquittal.

Orders Made

  • Appeal allowed
  • Convictions and sentences on both Count 1 and Count 3 quashed
  • Verdicts and judgments of acquittal entered

Key Takeaways

  • A trial miscarries where the conduct of the Crown Prosecutor causes unfairness to the accused, and that misconduct is a relevant factor weighing against ordering a new trial.
  • Directions to the jury on lies and consciousness of guilt must clearly explain the limited purpose for which such evidence may be used; a direction that falls short of the framework required (as discussed in R v Hemsley) can constitute a ground for quashing a conviction.
  • In historical sexual offence cases, the trial judge must give adequate warnings about the effects of delay, both delay in complaint and delay between the alleged events and the trial, to protect an accused's ability to answer the allegations.
  • Where a trial has miscarried due to Crown Prosecutor conduct and the offences alleged are very old, the Court of Criminal Appeal may decline to order a new trial and instead enter acquittals, rather than expose the accused to further proceedings.
  • The Court of Criminal Appeal confirmed that the combination of multiple trial errors, rather than any single deficiency alone, can cumulatively produce a miscarriage of justice sufficient to warrant quashing convictions.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- Graham v The Queen (1998) 195 CLR 606
- R v VHP (unreported, NSWCCA, 7 July 1997)
- R v Kneebone 47 NSWLR 450
- R v Walton [1999] NSWCCA 452
- Papakosmas v The Queen (1999) 196 CLR 297
- Jones v The Queen 191 CLR 417
- R v Hemsley (1988) 36 A Crim R 334
- R v Newham (unreported, NSWCCA, 26 November 1993)
- R v O'Meagher (unreported, NSWCCA, 10 February 1997)