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Court of Criminal Appeal 5 May 2003

REGINA v S

[2003] NSWCCA 122

Sexual offences
APPEAL CRIMINAL LAW AGGRAVATED SEXUAL ASSAULT EVIDENCE ACT, S44(2)(B) EXAMINE A WITNESS WILL BE ADMITTED DAMAGING ADMISSION

Citation: Regina v S [2003] NSWCCA 122
Court: New South Wales Court of Criminal Appeal
Date: 5 May 2003
Judges: Mason P; James J; Dunford J

Background

The appellant, a paraplegic man who used a wheelchair, was convicted in the Tamworth District Court of one count of aggravated sexual assault against his former wife. The alleged offence occurred in April 2001, some years after the couple had divorced. The appellant denied the complainant had entered his home on the day in question, and denied any physical or sexual assault occurred.

The Crown case rested on the complainant's evidence, corroborated by complaint evidence from a friend and two police officers, and medical evidence of fresh bruising consistent with the complainant's account. The central issue at trial was whether the assaults happened at all. The defence alleged the complainant had fabricated the allegation, partly to obtain compensation from the Victims Compensation Tribunal.

The jury convicted the appellant. He was sentenced to imprisonment of two years and six months with a non-parole period of twelve months, a portion of which had been served before bail was granted pending this appeal.

  • Whether the trial judge improperly cut short a line of cross-examination directed at establishing the complainant had a financial motive to fabricate the sexual assault allegation.
  • Whether the requirements of section 44(2)(b) of the Evidence Act 1995 (NSW) were correctly applied when defence counsel sought to use a document to cross-examine the complainant, including whether the judge was entitled to be told in advance that the document was not authored by the witness.
  • Whether the trial judge's criticism of defence counsel was unfair and caused the trial to miscarry.
  • Whether the trial miscarried because the appellant was cut short when attempting to explain a damaging admission in his own evidence.
  • Whether, if any of the above grounds were established, the proviso to section 6(1) of the Criminal Appeal Act 1912 (which allows a conviction to stand despite an error if no substantial miscarriage of justice occurred) should be applied in favour of the Crown.

Decision

Ground 1: Motive to fabricate. James J (in a minority on this ground) concluded the trial judge had effectively rejected a question put to the complainant about whether she had told the appellant, during their marriage, that a Legal Aid solicitor had advised she was not entitled to any of his accident compensation money. His Honour considered this amounted to improperly cutting short a line of cross-examination directed at a possible financial motive to fabricate. Mason P and Dunford J did not uphold this ground, though the finding by James J strengthened his overall conclusion that the proviso should not be applied.

Ground relating to section 44(2)(b) and document use. The Court examined the requirements for using a document to cross-examine a witness under section 44(2)(b) of the Evidence Act. The judgment considered what a trial judge needs to know before a witness is confronted with a document, including whether the court must be informed that the document is not the witness's own, before that witness is shown it.

Unfair criticism of counsel and the damaging admission. The Court found that the trial judge's criticism of defence counsel was unfair and that this caused the trial to miscarry. Separately, the Court found that the appellant had been improperly cut short when attempting to explain a damaging admission in his own evidence, depriving him of the opportunity to provide an explanation to the jury.

The proviso. All three judges agreed that the proviso to section 6(1) of the Criminal Appeal Act 1912 should not be applied in favour of the Crown. The cumulative effect of the errors was such that the conviction could not be allowed to stand and a new trial was required.

Orders Made

  • Appeal allowed.
  • Conviction and sentence set aside.
  • New trial ordered.

Key Takeaways

  • A trial judge's unfair criticism of defence counsel can constitute a miscarriage of justice sufficient to warrant setting aside a conviction and ordering a new trial.
  • Where an accused attempts to explain a damaging admission in their own evidence and is cut short, the resulting deprivation of the opportunity to explain can contribute to a miscarriage of justice.
  • Under section 44(2)(b) of the Evidence Act 1995 (NSW), a court examining whether a document used in cross-examination will be admitted must be properly informed about the nature of that document, including, the Court of Criminal Appeal held, whether it is not the document of the witness being cross-examined.
  • Cross-examination directed at a complainant's alleged financial motive to fabricate an allegation is a legitimate line of questioning that should not be improperly foreclosed by a trial judge.
  • The proviso to section 6(1) of the Criminal Appeal Act 1912 will not save a conviction where multiple significant errors have occurred at trial, particularly those affecting the fairness of the proceedings for the accused.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), section 44(2)(b)
- Criminal Appeal Act 1912 (NSW), section 6(1) (including the proviso)

Cases:
No specific cases were cited in the portions of the judgment provided.