Citation: Eric Russell Picker v Regina [2002] NSWCCA 78
Court: Court of Criminal Appeal, New South Wales
Date: 20 March 2002
Judge(s): Beazley JA, Bell J, Smart AJ
Background
The appellant was convicted in the District Court on two counts of sexual intercourse without consent and one count of possessing a firearm with intent to commit a sexual assault. The convictions arose from an incident on 18 October 1999 in which the complainant alleged the appellant entered her home armed with a rifle and sexually assaulted her while her partner was away. The appellant received a total effective sentence of eight and a half years, with a non-parole period of six years.
The appellant denied the sexual acts were non-consensual. His account was that the complainant had been the initiator, a version he relayed to a police officer in informal conversation after exercising his right to silence during a formal interview.
The case turned almost entirely on credibility. The trial judge directed the jury that the central question was whether the complainant's account could be accepted beyond reasonable doubt as honest and accurate, and that all other evidence had been led simply to assist in that assessment.
Legal Issues
- Whether Crown cross-examination of the appellant was impermissible, specifically in driving him to characterise the complainant as lying and in suggesting he had recently fabricated aspects of his evidence because his counsel had not put those matters to the complainant
- Whether those errors, combined with inadequate re-examination by defence counsel and the prosecutor's closing address, produced a miscarriage of justice
- Whether, given those combined errors, the Court of Criminal Appeal could be satisfied the convictions should nonetheless stand
Decision
Smart AJ, with Beazley JA and Bell J agreeing, identified two categories of impermissible cross-examination by the Crown. First, the appellant was pressed to state that the complainant was lying, a line of questioning that courts have consistently regarded as impermissible because it requires the accused to characterise a witness in terms that go beyond legitimate credit attack. Second, the cross-examination carried the implicit suggestion that the reason defence counsel had not put certain matters to the complainant was that the appellant had only recently invented them, effectively imputing recent fabrication through the vehicle of cross-examination rather than legitimate evidence.
These problems were compounded by two further failures. Defence counsel's re-examination of the appellant was described as cursory and did not repair the damage caused by the cross-examination. The prosecutor's closing address was characterised as "florid" and capitalised on the impermissible lines of cross-examination rather than confining itself to the legitimate evidence.
Smart AJ emphasised that this was, in practical terms, an oath-against-oath case. The jury's assessment of the appellant's credibility was critical: unless there was a reasonable possibility his account was true, conviction was the likely outcome. The damage to his credit from the impermissible cross-examination was assessed as probably considerable. Viewing these matters in combination, the Court concluded a miscarriage of justice had occurred and that it could not be satisfied to the contrary. Given that finding, the sentence appeal did not require determination.
Orders Made
- Appeal allowed; convictions quashed
- New trial ordered
Key Takeaways
- Cross-examining an accused in terms that require him to say a complainant is lying is impermissible, as confirmed here by the Court of Criminal Appeal applying established authority
- Suggesting through cross-examination that an accused recently fabricated his evidence, by implying that counsel's failure to put matters to an earlier witness reflects recent invention, is equally impermissible
- In a credibility-critical case where the outcome turns on oath against oath, impermissible cross-examination damaging the accused's credit carries heightened risk of causing a miscarriage of justice
- Inadequate re-examination following improper cross-examination can leave damage to an accused's credit unrepaired, compounding the overall unfairness of the trial
- A prosecutor's closing address that capitalises on impermissible cross-examination, rather than the legitimate evidence, forms part of the cumulative picture the appellate court will assess when considering whether justice has miscarried
Legislation and Cases Referenced
Legislation: None cited
Cases:
- Rich (2001) 102 A Crim R 165
- Palmer v The Queen (1998) 193 CLR 1
- R v Dennis [1999] NSWCCA 23
- R v Davies (unreported, CCA, 5 December 1994)
- R v Gilbert (unreported, NSWCCA, 10 December 1998)
- R v Smith [2000] NSWCCA 468
- R v Birks (1990) 19 NSWLR 677
- R v Manunta (unreported, SACCA, 28 July 1999)