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6
Court of Criminal Appeal 16 March 2001

R v Dixon

[2001] NSWCCA 39

Sexual offences

Citation: Dixon v R [2001] NSWCCA 39
Court: NSW Court of Criminal Appeal
Date: 16 March 2001
Judge(s): Mason P, Giles JA, Whealy J

Background

The appellant, a man who had entered a de facto relationship with the complainant's mother, was convicted by a jury in the District Court on four counts of child sexual assault. The charges arose from alleged incidents of sexual intercourse with a child under ten years and incitement to acts of indecency, occurring at two locations in New South Wales between 1995 and 1996. He was sentenced to four years imprisonment with an 18-month non-parole period on the principal counts, with concurrent fixed terms on the remaining counts.

The Crown case rested substantially on the complainant's evidence. There was no corroborative medical evidence, no reliable complaint evidence, and a significant delay between the alleged offending and the report to police. The defence strategy focused on highlighting inconsistencies in the complainant's account, the absence of any complaint over an extended period, and a suggestion that family members had fabricated or encouraged the allegations to "pay back" the appellant for leaving the complainant's mother.

The appellant appealed against conviction, arguing that the conduct of his trial had miscarried, principally because prejudicial evidence was placed before the jury without adequate directions to neutralise its potential for misuse.

  • Whether the trial judge gave adequate directions to the jury regarding prejudicial evidence that was admitted during the trial, including evidence from the complainant's mother about an alleged incident not charged in the indictment.
  • Whether the failure to provide adequate curative directions, and the failure to consider discharging the jury, gave rise to a miscarriage of justice.
  • Whether leave should be granted to argue a ground of appeal that had not been the subject of an application to discharge the jury or a request for re-direction at trial.

Decision

Whealy J, with whom Mason P and Giles JA agreed, concluded that the appeal should be allowed. Central to the reasoning was the admission of evidence from the complainant's mother concerning an alleged incident at a different location, which had not been charged in the indictment. This evidence had emerged as an unwanted consequence of the defence tactic of emphasising inconsistencies between witnesses.

The trial judge's response to this evidence was found to be insufficient. Her Honour's directions did not clearly instruct the jury to ignore the material entirely and to make no use of it in determining the charges. Whealy J expressed doubt that even forceful directions would have been adequate to undo the resulting prejudice, noting that discharging the jury may have been the appropriate course.

The Court of Criminal Appeal accepted that no application to discharge the jury had been made at trial, and no re-direction had been sought. Nonetheless, the court was satisfied that the failure to give adequate directions created a real risk of wrongful use of the evidence by the jury to the appellant's detriment. The likelihood of such misuse was sufficiently high to raise a real possibility of a miscarriage of justice, warranting leave to argue the ground.

Orders Made

  • Leave to appeal granted pursuant to r 4 of the Criminal Appeal Rules in relation to ground 1(a) of the Grounds of Appeal.
  • Appeal against conviction allowed.
  • Convictions and sentences quashed.
  • New trial ordered.

Key Takeaways

  • Where prejudicial evidence is admitted at trial, a direction that is vague or merely touches on general credibility principles may be inadequate; the jury required a forceful and specific instruction to disregard the material entirely and to make no use of it in determining the charges.
  • A failure to give adequate curative directions can constitute a miscarriage of justice even where no application to discharge the jury was made and no re-direction was sought at trial, provided the likelihood of jury misuse of the evidence is sufficiently high.
  • The Court of Criminal Appeal confirmed that in some circumstances the only adequate remedy for seriously prejudicial inadmissible evidence may be the discharge of the jury, not a direction alone.
  • Evidence of uncharged acts, particularly where it is capable of being substituted for the conduct actually charged, demands careful and explicit judicial management to prevent impermissible reasoning by the jury.
  • Appellate leave may be granted under r 4 of the Criminal Appeal Rules to argue grounds not raised below where there is a real possibility that the trial miscarried, even if the defence tactic that produced the problem was deliberate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 61N
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Criminal Appeal Rules, r 4

Cases:
- R v Tripodina (1988) 35 A Crim R 183
- R v King [2000] NSWCCA 507
- Crampton v The Queen (2000) 75 ALJR 133
- R v Longman (1989) 168 CLR 79
- Jones v The Queen (1997) 191 CLR 439
- Gipp v The Queen (1998) 194 CLR 106
- R v Birks (1990) 19 NSWLR 677
- R v Beserwick (1993) 30 NSWLR 510
- R v Johnston (1998) 45 NSWLR 363
- Courtney-Smith (No 2) v Regina (1990) 48 A Crim R 49
- Williams v Regina (1990) 50 A Crim R 213
- R v McCann (1997) 95 A Crim R 308
- Yagar v The Queen (1977) 139 CLR 28
- Jackson v The Queen (1976) 134 CLR 42