Citation: R v Heuston [2003] NSWCCA 172
Court: New South Wales Court of Criminal Appeal
Date: 30 June 2003
Judge(s): Hodgson JA, Simpson J, Greg James J
Background
The appellant was convicted in the District Court at Coffs Harbour in April 1994 of armed robbery and sexual assault arising from a home invasion at Bowraville on 15 September 1992. The Crown case rested substantially on identification evidence from the two complainants, who recognised the appellant as one of four masked intruders. The appellant was sentenced to a total of 13 years' imprisonment, later back-dated to commence on 9 March 1993.
An earlier appeal against conviction was dismissed by the Court of Criminal Appeal in June 1995, and a subsequent application for review under the Crimes Act was dismissed by Barr J in August 2000. In June 2002, the appellant applied to the Governor for a further review. In January 2003, the Attorney-General referred the case to the Court of Criminal Appeal under s 474C(1)(b) of the Crimes Act 1900, which required the Court to treat the reference as if it were a fresh appeal against conviction.
The fresh appeal centred on evidence that had emerged from the Police Royal Commission and the Police Integrity Commission touching on the integrity of police witnesses who gave evidence at the original trial, as well as renewed challenges to the adequacy of directions given to the jury on identification and delay.
Legal Issues
- Whether evidence emerging from the Police Royal Commission and Police Integrity Commission concerning the conduct of police witnesses constituted fresh evidence sufficient to disturb the convictions
- Whether the trial judge's directions on identification (including the so-called Longman direction concerning the dangers of delayed complaint) were adequate
- Whether the Crown prosecutor's rhetorical question to the jury ("Why would he do that?") regarding the complainants' motive to lie was improper and whether it caused a miscarriage of justice
- Whether, if the convictions were quashed, the appropriate remedy was a verdict of acquittal or an order for a new trial
Decision
The Court accepted that material from the Police Royal Commission and Police Integrity Commission bearing on the conduct of police witnesses at the trial constituted fresh evidence of sufficient weight to warrant intervention. That evidence undermined confidence in aspects of the police case, including the reliability of a signed notebook and related testimony, which had formed part of the Crown's evidence at trial.
The Court also found that the directions given to the jury on identification and the risks associated with delayed complaint were inadequate in the circumstances of the case. The identification evidence had always been recognised as weak, as had been argued in the earlier appeal. The fresh material now made the overall Crown case more vulnerable to challenge.
On the "why would he do that?" submission by the Crown prosecutor at trial, the Court held that the trial judge ought to have directed the jury to disregard that line of argument and warned against speculation. However, because no objection had been raised at trial and given the passage of time, the Court did not consider this ground alone sufficient to justify allowing the appeal: it was assessed consistently with the approach taken in R v Gregory.
Taking all grounds together, the Court was satisfied the convictions could not stand and should be quashed. Because the Crown retained evidence, including the signed notebook, Sergeant Smith's testimony, and the identification evidence, sufficient to justify a new trial, a verdict of acquittal was not warranted. A new trial was ordered instead.
Orders Made
- Appeal allowed
- Convictions quashed
- New trial ordered
- Sentences imposed on 7 June 1996 backdated so as to have commenced on 9 March 1993 (with the practical effect that those sentences were treated as completed on 8 March 2001, permitting the appellant to apply for bail on the retrial matters)
Key Takeaways
- Fresh evidence from a police integrity body can constitute grounds for quashing a conviction on an Attorney-General's reference, even where earlier appeals and review applications have failed, provided the material is of sufficient weight to undermine confidence in the verdict.
- A Longman direction, addressing the dangers of accepting identification or recognition evidence affected by delay, was required in the circumstances of this case, and its absence contributed to the finding that the convictions could not stand.
- Crown prosecutors' rhetorical questions inviting juries to speculate about why a complainant would lie ("Why would he do that?") have been consistently disapproved by the Court of Criminal Appeal, with such submissions carrying the risk of reversing the onus of proof; however, failure to object at trial limits the weight that ground carries on appeal, particularly after a lengthy delay.
- Where sufficient evidence remains to support a prosecution after convictions are quashed, the Court of Criminal Appeal will order a new trial rather than direct a verdict of acquittal, preserving the Crown's right to place the case before a fresh jury.
- Under s 474L of the Crimes Act 1900, the Court is required to treat an Attorney-General's reference of a conviction as if it were an appeal against conviction brought by the convicted person.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 474B, 474C, 474D, 474L
- Costs in Criminal Cases Act 1967 (NSW)
- Crime (Sentencing Procedure) Act 1999 (NSW), s 59
Cases
- Longman v The Queen (1989) 168 CLR 79
- Jones v The Queen (1997) 191 CLR 439
- R v BWT (2002) 54 NSWLR 241
- R v Gregory [2002] NSWCCA 199
- R v Heuston, Court of Criminal Appeal, 20 June 1995
- R v Jovanovic (1997) 42 NSWLR 520
- R v Uhrig, NSWCCA, 24 October 1996
- WRC (2002) ACrimR 89