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Court of Criminal Appeal 1 May 2002

R v Noonan

[2002] NSWCCA 150

Public order & justice offences
CRIMINAL LAW PROHIBITED COMMENT BY CROWN PROSECUTOR DIRECTIONS TO JURY NO ERRORS IN DIRECTION

Citation: R v Noonan [2002] NSWCCA 150
Court: New South Wales Court of Criminal Appeal
Date: 1 May 2002
Judges: Beazley JA, Bell J, Smart AJA

Background

The appellant was convicted by a jury in the District Court of wounding with intent to rob, contrary to s 98 of the Crimes Act 1900 (NSW), carrying a maximum penalty of 25 years imprisonment. The Crown case was that the appellant and an accomplice forced their way into a victim's home, threatened both the victim and his housekeeper, and assaulted the victim with a replica shotgun and a hammer during a struggle. The Crown relied on photograph identifications by multiple witnesses, DNA evidence linking the replica shotgun to the victim's blood, and the discovery of matching clothing in a vehicle associated with the appellant.

The appellant denied involvement. He claimed the shotgun belonged to a friend and that he was at home with his de facto partner on the night in question. He did not serve an alibi notice on the Crown before giving that evidence, as required under s 48 of the Criminal Procedure Act 1986 (NSW).

Two procedural irregularities at trial formed the basis of the appeal. During his closing address, the Crown prosecutor made two comments: one on the appellant's failure to call his de facto partner to give evidence, and one on the appellant's failure to lodge an alibi notice. The first comment was expressly prohibited by statute. The second was made without the Crown having led formal evidence about whether an alibi notice had actually been lodged.

  • Whether the Crown prosecutor's comment on the appellant's failure to call his de facto partner breached s 20(3) of the Evidence Act 1995 (NSW), and whether the trial judge's corrective direction adequately remedied that breach.
  • Whether the Crown's comment on the absence of an alibi notice was improper, given that no formal evidence had been led on that point, and whether the absence of any judicial direction on the matter caused a miscarriage of justice.
  • Whether any individual or cumulative errors, if established, amounted to a substantial miscarriage of justice such that the proviso should not apply.

Decision

On the first ground, Beazley JA (with Bell J and Smart AJA agreeing) held that the trial judge's corrective direction was not erroneous. Section 20(3) of the Evidence Act 1995 prohibits prosecutors from commenting on a defendant's failure to call certain family members as witnesses. The Crown prosecutor breached that prohibition by remarking on the de facto partner's absence. However, the trial judge directly addressed the error in summing up, and the Court found that direction was adequate and in accordance with established authority.

On the second ground, the Court found that the appellant had effectively acknowledged during his own evidence that no alibi notice had been served. That acknowledgment was sufficient to ground the Crown's comment, even in the absence of formal evidence specifically directed to the point. Because the factual foundation for the comment emerged from the appellant's own testimony, the absence of a judicial direction on the topic did not produce a miscarriage of justice.

Even if either or both issues had individually or cumulatively amounted to error, the Court held this was an appropriate case in which to apply the proviso. The Crown case was strong, including photographic identification by multiple witnesses, forensic DNA evidence, and the discovery of matching items. The appellant's denials were unconvincing under cross-examination, and the Court concluded his conviction was inevitable. No substantial miscarriage of justice had occurred.

The Court also noted that neither issue had been objected to at trial, meaning leave to appeal was required under r 4 of the Criminal Appeal Rules. Leave was granted on the first ground given its broader importance, but the appeal was dismissed regardless.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where a Crown prosecutor makes a comment prohibited by s 20(3) of the Evidence Act 1995, a corrective direction from the trial judge can be sufficient to cure the irregularity, provided the direction itself is accurate and adequate.
  • A comment by the Crown on the failure to serve an alibi notice does not necessarily require formal evidence on that point if the defendant's own testimony amounts to an acknowledgment that no notice was given.
  • Under the proviso, an appellate court may dismiss an appeal even where trial errors are assumed to exist, provided no substantial miscarriage of justice has occurred. A strong and unshaken Crown case is central to that assessment.
  • Failure to object at trial to procedural irregularities requires the appellant to seek leave to appeal under r 4 of the Criminal Appeal Rules, rather than appealing as of right.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the cumulative effect of multiple alleged irregularities must still be assessed against the overall strength of the evidence before concluding that a substantial miscarriage of justice has taken place.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 98 (wounding with intent to rob)
- Evidence Act 1995 (NSW), s 20(3) (prohibition on comment regarding failure of certain persons to give evidence)
- Criminal Procedure Act 1986 (NSW), s 48 (alibi notice requirements)
- Criminal Appeal Rules, r 4 (leave to appeal where no objection taken at trial)

Cases:
- R v Zreika [2001] NSWCCA 57
- R v Buckland (1977) 2 NSWLR 452
- R v Scott (2000) 112 A Crim R 543
- R v Gardner [2001] NSWCCA 381
- R v Storey (1978) 140 CLR 364
- Wilde v R (1988) 164 CLR 365
- R v Bozzola [2001] NSWCCA 8
- Glennon v R (1994) 68 ALJR 209