Citation: Regina v King [2000] NSWCCA 507
Court: NSW Court of Criminal Appeal
Date: 6 December 2000
Judge(s): Fitzgerald JA; Whealy J; Howie J
Background
The appellant was convicted in the Lismore District Court on six counts arising from a violent home invasion: one count of armed robbery and five counts of aggravated sexual intercourse without consent. The victim was a heavily pregnant woman who had been left alone at home while her husband attended a school camp. The attack occurred in the early hours of the morning and involved sustained threats of violence and a prolonged sexual assault.
The prosecution case was circumstantial. The appellant was a family acquaintance of the victim and her husband, and had made a suspicious telephone call to the household the afternoon before the attack. A later telephone call to the home in the early hours of the morning, in which a male voice disguised itself as a female, was also attributed to the appellant. Various other circumstances connected the appellant to the offending.
DNA evidence was not obtained or tendered at trial. Defence counsel at trial pointed out this absence in closing address but did not ask the trial judge to give the jury a formal direction about it. Following conviction, the appellant sought leave to raise this omission as a ground of appeal, supported by a statement from trial counsel that the failure to seek such a direction was likely an oversight.
Legal Issues
- Whether the trial judge erred by failing to direct the jury that the absence of DNA evidence, which the prosecution could have obtained, should be considered when assessing whether guilt had been proved beyond reasonable doubt.
- Whether leave should be granted under Rule 4 of the Criminal Appeal Rules to permit the appellant to raise a ground of appeal not taken at trial.
- Whether the failure to seek a direction on the absent DNA evidence constituted a miscarriage of justice.
Decision
All three judges dismissed the appeal. The Court found that the prosecution case was exceptionally strong and that the absence of a DNA direction had not produced any miscarriage of justice or any significant possibility that an innocent person was convicted.
On the question of leave under Rule 4 of the Criminal Appeal Rules, the Court was not persuaded that the failure to seek a direction at trial was an oversight, as trial counsel later suggested. Fitzgerald JA observed that it was equally plausible the direction was not sought because there was no perceived tactical benefit, particularly given that drawing further attention to the absent DNA evidence risked emphasising the otherwise powerful Crown case. Howie J reached the same conclusion.
Whealy J provided a detailed analysis of when a trial judge should give a direction concerning failures by investigators to obtain potential forensic evidence. He distinguished between clear cases at either end of the spectrum, such as those governed by the principles in Longman v The Queen, and intermediate cases where a direction may be warranted depending on the circumstances. In those intermediate cases, he confirmed that the trial judge has a discretion guided by what is necessary to ensure a fair trial.
Whealy J also emphasised the role of defence counsel in identifying when such a direction ought to be sought. He concluded that the absence of any request in this case was most likely a considered forensic decision by trial counsel rather than an oversight, and that no error in the trial had been established.
Orders Made
- Leave refused pursuant to Rule 4 of the Criminal Appeal Rules.
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that Rule 4 of the Criminal Appeal Rules operates as a meaningful constraint on the ability to raise fresh grounds on appeal where no objection was taken at trial, reflecting the practical reality that new counsel often assign greater significance to trial matters than was warranted at the time.
- A claim by trial counsel that the omission to seek a direction was an oversight will not automatically attract leave under Rule 4, particularly where an equally plausible forensic explanation exists for the omission.
- Where investigators fail or are unable to obtain potentially relevant forensic evidence, a trial judge may need to direct the jury about that failure, but the appropriateness of such a direction depends on the particular issues raised at trial and is not automatic.
- Defence counsel bears responsibility for identifying when a direction on absent forensic evidence is required and for seeking that direction from the trial judge to protect the accused's right to a fair trial.
- No miscarriage of justice arises where the prosecution case is sufficiently strong and there is no significant possibility that an innocent person has been convicted, even where a potentially useful direction was not given.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Rules, Rule 4
Cases
- Longman v The Queen (1989) 168 CLR 79
- Crampton v The Queen (2000) HCA 60
- R v Aziz (1982) 2 NSWLR 322
- R v Haeney (unreported, CCA, 13 June 1978)
- Tripodina & Morabito (1987-1988) 35 A Crim R 183
- R v Saffron (1989) 7 NSWLR 395
- R v Abusafiah (1991) 24 NSWLR 531
- R v Jeffrey (unreported, CCA, 16 December 1993)
- R v Johnston (1998) 45 NSWLR 362
- R v McIntyre (2000) 111 A Crim R 211