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Court of Criminal Appeal 30 November 2001

Regina v Grant

[2001] NSWCCA 486

Also reported as 127 A Crim R 124
Sexual offences
CIRCUMSTANCES TO BE CONSIDERED

Citation: Regina v Grant [2001] NSWCCA 486
Court: New South Wales Court of Criminal Appeal
Date: 30 November 2001
Judge(s): Spigelman CJ, Sully J, Smart AJ

Background

The appellant was convicted by a jury in the Griffith District Court of aggravated indecent assault committed in company. The alleged victim, Ms Cummins, had made a detailed written statement to police in October 1998 describing the assault. She died after the committal proceedings but before the trial.

Because the complainant was deceased, her evidence could not be tested by cross-examination at trial. The Crown sought to rely on her written police statement as a "prescribed statement" under s 116 of the Criminal Procedure Act 1986. The appellant opposed its admission, arguing the discretion to exclude should have been exercised in his favour.

The appellant was acquitted on a companion charge of detaining the complainant with intent to hold her for his advantage. He appealed his conviction on the indecency count on two grounds: first, that the trial judge erred in admitting the statement; and second, that the jury's verdict was unreasonable and unsupported by the evidence.

  • Whether the trial judge erred in admitting the deceased complainant's police statement under s 116 of the Criminal Procedure Act 1986
  • How the discretion to exclude evidence under s 116(2) should be exercised, including the circumstances relevant to that exercise
  • The relationship between s 116(2) and the Evidence Act 1995, and whether a broader discretion existed to exclude otherwise admissible evidence because its admission would lead to an unfair trial
  • Whether the jury's verdict of guilty on the indecency count was unreasonable or unsupported by the evidence, particularly given the acquittal on the detention count

Decision

The Court of Criminal Appeal dismissed the appeal on both grounds, upholding the trial judge's decision to admit Ms Cummins' statement and confirming that the jury's verdict was reasonably open on the evidence.

On the admissibility question, the Court examined the proper exercise of the discretion under s 116(2) of the Criminal Procedure Act 1986 and its relationship to the Evidence Act 1995. The Court considered the circumstances that bear on that discretion, including the inability of the accused to cross-examine the deceased witness and the centrality of her statement to the Crown case. The trial judge had conducted a voir dire before admitting the statement, and the Court found no error in the manner in which that discretion was exercised.

On the unreasonable verdict ground, the appellant argued that the jury's acquittal on the detention count necessarily meant they had rejected Ms Cummins' evidence generally, and that no rational distinction could be drawn between her account on the two counts. The Court rejected this reasoning. The Court found the acquittal was more readily explained by the jury's uncertainty about whether the appellant specifically intended to detain the complainant for his own advantage, given the way the Crown put its case and the nebulous nature of the alleged advantage attributable to the appellant as distinct from his co-accused, Hunt. The acquittal did not require the conclusion that the jury disbelieved Ms Cummins' account of the indecent assault.

On the evidence as a whole, the Court found it was open to the jury, acting reasonably, to convict the appellant on the indecency count.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • A trial judge exercising the discretion to exclude a deceased complainant's prescribed statement under s 116(2) of the Criminal Procedure Act 1986 must consider the relevant circumstances, including the accused's inability to cross-examine the witness, but an admission following a proper voir dire will not readily be disturbed on appeal.
  • The relationship between s 116(2) and the Evidence Act 1995 was examined, with the Court addressing whether a broader discretion exists to exclude otherwise admissible evidence on the basis that admission would render the trial unfair.
  • An acquittal on one count does not automatically undermine a guilty verdict on another count arising from the same factual matrix, provided there is a rational basis on which the jury could have distinguished between the two charges.
  • Sufficient evidence existed on the indecency count to support the jury's verdict, even though Ms Cummins' statement was the primary basis of the Crown case and could not be tested through cross-examination.
  • In dismissing the appeal, the Court confirmed that the reasonableness of a verdict is assessed by reference to whether it was open to the jury acting rationally on the whole of the evidence, not simply by reference to apparent tension between verdicts on different counts.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 116
- Evidence Act 1995 (NSW)
- Justices Act 1902 (NSW), s 48E
- Crimes Act 1900 (NSW)
- Crimes (Procedure) Amendment Act 1983 (NSW)
- Justices (Procedure) Further Amendment Act 1983 (NSW)

Cases
- Attorney General of NSW v Jackson (1906) 3 CLR 731
- R v Hendy (1850) 4 Cox CC 243
- R v Brotherton (1992) 29 NSWLR 95
- R v Stackelroth (1996) 86 A Crim R 438
- R v Lynch [1979] 2 NSWLR 775
- Scott & Anor v The Queen [1989] AC 1242
- McDermott (1948) 76 CLR 501
- Lee (1950) 82 CLR 133
- Macpherson (1981) 147 CLR 512
- Cleland (1982) 151 CLR 1
- Phillips (1985) 159 CLR 45