Citation: Regina v GJW [2003] NSWCCA 277
Court: NSW Court of Criminal Appeal
Date: 1 October 2003
Judges: Foster AJA, Grove J, Dowd J
Background
The appellant was convicted in the District Court at Taree, following a trial before Bell DCJ and a jury, on six counts: three counts of assault occasioning actual bodily harm, one count of common assault, one count of sexual intercourse with a child aged between ten and sixteen years, and one count of sexual assault. The most serious count carried a maximum of fourteen years' imprisonment, and the appellant received a principal sentence of seven years with a non-parole period of five years and three months.
The offences centred on events alleged to have occurred at a rural property at Old Bar, where the appellant resided among various dwellings and caravans. The complainant, a teenage girl, had at some point lived at the property. A key count alleged that a sexual assault occurred on 7 February 1999, during a period the complainant said she and the appellant were at the property between approximately 10 am and 4 pm.
On appeal, the appellant argued his trial had miscarried because potentially exculpatory evidence was never placed before the jury, and that his solicitor's negligence was the cause of that omission.
Legal Issues
- Whether the absence of "new" evidence concerning visitors to the Old Bar property on 7 February 1999 caused the trial to miscarry.
- Whether the failure of the instructing solicitor to obtain that evidence and other relevant material constituted negligence amounting to a miscarriage of justice.
- Whether documentation that contradicted prosecution witnesses (concerning their presence at the property during an earlier period) would, if adduced at trial, have created a significant possibility of acquittal.
- Whether leave to appeal against sentence should be granted.
Decision
The Court unanimously dismissed the appeal. Grove J, with whom Foster AJA and Dowd J agreed, examined affidavit evidence from several witnesses who said they visited the Old Bar property on the Sunday following the birth of the appellant's grandson and were told by the appellant's son Timothy that the appellant was not there. The appellant argued this evidence could have cast doubt on the complainant's account of events that day and, by extension, her overall credibility.
The Court found the proposed new evidence was peripheral and any suggestion of its impact on the jury's verdict was speculative. Crucially, the evidence went only to the comings and goings on the property that day. Even accepting that it might have raised some doubt about the timing or duration of events on 7 February, the Court considered the jury could simultaneously remain satisfied of guilt on the strength of the complainant's evidence and other material. The new evidence did not meet the applicable test for a conclusion that a miscarriage had occurred.
A separate argument concerned documentation, produced at a subsequent trial involving a different complainant, that contradicted two prosecution witnesses named Bourne and HS about their presence at the property during an earlier period. The Court acknowledged this material might have substantially damaged those witnesses' credibility. However, their evidence at the first trial went only to the general nature of the relationship between RL and the appellant, and was not directly connected to the commission of the charged offences. Destroying their credibility entirely would not have had a relevant bearing on the complainant's own testimony about the offences.
Because the post-trial material would not have created a significant possibility of acquittal on the counts charged, the Court found it unnecessary to examine whether the legal representatives had in fact been negligent. Neither ground of appeal succeeded.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence refused.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that "new" evidence must do more than raise peripheral doubts; it must create a significant possibility that the jury would have reached a different verdict, not merely add further material to an already contested factual picture.
- Where proposed fresh evidence goes only to the credibility of witnesses whose testimony was collateral to the central allegations, its absence does not give rise to a miscarriage of justice, even if that evidence could have substantially damaged those witnesses at trial.
- A finding that post-trial material falls short of the applicable test makes it unnecessary to determine whether solicitor negligence caused its absence, removing the need to resolve the related ground.
- Allegations of solicitor negligence as a ground of appeal require a direct causal link: the omitted evidence must itself have had the capacity to produce a different outcome, and courts will not pursue the negligence question if that capacity is not established.
- Leave to appeal against sentence may be sought as a conditional measure where an appellant anticipates partial success on conviction grounds, but will be refused where the conviction appeal itself fails.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), ss 61I, 66C(1)
- Justices Act (NSW)
Cases:
- Mikelberg v The Queen (1989) 167 CLR 259
- R v Fuller [2002] NSWCCA 121
- R v Whyte [2003] NSWCCA 64