AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 12 April 2002

R v Currie

[2002] NSWCCA 126

Sexual offences
CRIMINAL LAW CHARGE OF AGGRAVATED SEXUAL ASSAULT CRIMES ACT 1900 (NSW) S 61I WHETHER FAIR TRIAL OCCURRED DIRECTIONS BY TRIAL JUDGE TO JURY SERIOUS PROCEDURAL IRREGULARITY

Citation: Currie v R [2002] NSWCCA 126
Court: New South Wales Court of Criminal Appeal
Date: 12 April 2002
Judge(s): Heydon JA, Dowd J, Whealy J

Background

The appellant was tried before Twigg DCJ in the District Court on a charge of aggravated sexual assault, under s 61I of the Crimes Act 1900 (NSW). The aggravating circumstances alleged were that the appellant had used a knife and threatened the complainant and her children during the offence.

The jury retired to deliberate and, about an hour later, sent the trial judge a written question asking whether it could return a verdict of guilty of sexual intercourse without consent while also returning a verdict of not guilty of the aggravated form of the offence. This was the first occasion during the trial that an alternative verdict had been raised. No alternative count had appeared on the indictment, and neither counsel had addressed the jury on the possibility of such a verdict.

The trial judge answered the jury's question in the affirmative and gave a brief direction on the elements of the alternative verdict. The jury ultimately acquitted the appellant on the charge as indicted but convicted him on the alternative, lesser count. The appellant appealed against that conviction.

  • Whether the appellant received a fair trial when the alternative statutory count was left to the jury at a very late stage, without proper directions and without either party having addressed it during the trial.
  • Whether the verdict of guilty was unreasonable or unsupported because of inconsistencies in the complainant's evidence.
  • Whether the trial judge should have directed the jury that doubts about the complainant's credibility on one count could be taken into account when assessing her reliability on the other count.
  • Whether the admission of the alibi notice as an exhibit denied the appellant a fair trial.
  • Whether the trial judge erred in failing to direct the jury to use prior inconsistent statements made by the complainant to assess her credibility.

Decision

The Court of Criminal Appeal allowed the appeal on the ground relating to the alternative verdict. The Court found that the trial had been conducted throughout on the basis of a single count, with neither counsel addressing the jury on any lesser alternative. When the jury raised the possibility mid-deliberation, the trial judge gave a brief confirmatory answer but provided practically no instruction on how the jury might view the facts differently depending on which count it was considering.

Heydon JA and Dowd J applied the principles established in R v Pureau and R v Heaton, which hold that leaving an alternative verdict to a jury at a late stage, without adequate directions, creates a serious risk of injustice. In particular, the jury received no guidance as to the varying views of the facts that might lead to one verdict rather than another, and there was a real risk the alternative conviction represented a compromise rather than a reasoned finding on the lesser offence.

Dowd J also found that, once the alternative count was live, the trial judge was obliged to direct the jury that doubts about the complainant's credibility on one element could be relevant to assessing her reliability on the other elements. That direction was not given. These two deficiencies, taken together, justified the setting aside of the conviction.

The Court did not consider it necessary to fully resolve the remaining grounds, given the conclusions on the directions issues. The appellant had accepted that a new trial, rather than an acquittal, was the appropriate remedy if the appeal succeeded on procedural grounds.

Orders Made

• A new trial is ordered, limited to the counts on which the appellant was found guilty

Note: The judgment states that orders were pronounced on 18 December 2001 and that the published judgment contains reasons for those orders. Based on the reasoning in the judgment, the orders comprised:
- Appeal allowed
- New trial ordered on the alternative count on which the appellant was convicted
- No new trial on the count on which the appellant was acquitted

Key Takeaways

  • Leaving an alternative verdict to a jury for the first time during deliberations, without any prior address by counsel and without detailed directions, constitutes a serious procedural irregularity capable of vitiating a conviction.
  • Under the principles from R v Pureau and R v Heaton, a trial judge who introduces an alternative verdict late in proceedings must give the jury adequate instruction about the different views of the facts that could produce one verdict rather than another. A bare confirmation that an alternative verdict is legally available does not satisfy this requirement.
  • Where credibility is central to a trial, a failure to direct the jury that doubts about a complainant's reliability on one aspect of the case may be relevant to assessing reliability on another can itself constitute a ground for a new trial.
  • The appropriate remedy for this type of procedural unfairness is ordinarily a new trial, not a directed acquittal, particularly where the appellant concedes as much.
  • A retrial ordered in these circumstances is confined to the count on which the appellant was convicted; an acquittal already entered cannot be disturbed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61Q
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- R v Heaton (CCA, unreported, 1 June 1990)
- R v Pureau (1990) 47 A Crim R 230
- R v Quinn (CCA, unreported, 31 July 1991)
- MacKenzie v R (1996) 190 CLR 348
- M v R (1994) 181 CLR 487
- R v Markuleski [2001] NSWCCA 290