AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 4 March 2003

R v Slewa

[2003] NSWCCA 50

Sexual offences
CRIMINAL LAW CONVICTION APPEAL SEXUAL ASSAULT

Citation: Slewa v R [2003] NSWCCA 50
Court: NSW Court of Criminal Appeal
Date: 4 March 2003
Judge(s): Santow JA, Simpson J, Smart AJ

Background

The appellant was convicted in the District Court on three counts arising from a sexual assault: detaining a person for advantage, committing an act of indecency, and sexual intercourse without consent in circumstances of aggravation. The offences occurred when the complainant, then 17 years old, accepted a lift from a stranger late at night after leaving her boyfriend's home.

After escaping the vehicle, the complainant memorised the registration plate as "KWA-470." Police searches on that plate yielded no match, but an alternate combination, "WKA-470," returned a red Ford Festiva that the appellant had possession of at the relevant time. The appellant initially told police he had been at an RSL club on the night in question, then later sought to correct that account to say he had been with his family.

The appellant was sentenced, with the head sentence being three years' imprisonment with a one-year non-parole period. He appealed against conviction only.

The appeal raised three grounds:

  • Whether a miscarriage of justice occurred because the trial judge did not give a separate direction to the jury about lies allegedly told by the appellant
  • Whether a miscarriage of justice occurred because the trial judge did not expressly direct the jury that it could not convict unless it was satisfied beyond reasonable doubt that the car in the appellant's possession was the car described by the complainant
  • Whether the jury's verdict was unreasonable and unsupported by the evidence

Decision

Lies direction. The Court noted that no such direction had been sought by defence counsel at trial. Applying the principles in Zoneff v The Queen, the Court found that the absence of a specific lies direction did not produce a miscarriage of justice on the facts. The trial judge's summing-up adequately addressed the treatment of the appellant's statements.

Direction on the car's identity. The Court accepted that establishing the car's identity was an essential link in the chain of circumstantial evidence and that the Crown's case could not succeed without it. Referring to Shepherd v The Queen, the Court noted that a specific direction on essential links in a circumstantial case is not always mandatory. The summing-up, while not framed in express terms, included a passage at page 37 that came close enough to conveying the required direction, particularly when read alongside earlier directions. Combined with the strength of the overall circumstantial evidence, no miscarriage of justice was found.

Unreasonable verdict. The Court rejected this ground, finding the verdict was open on the evidence. The complainant's detailed and substantially accurate description of the vehicle's interior, her description of the appellant's appearance, and the registration plate inquiry pointing to the appellant's vehicle together provided a sufficient evidentiary basis for the jury's conclusions.

All three grounds failed and the appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a failure to give a specific lies direction will not automatically constitute a miscarriage of justice, particularly where defence counsel did not seek such a direction at trial.
  • A specific Shepherd-style direction identifying an essential link in a chain of circumstantial evidence is not universally required; a summing-up that adequately conveys the substance of the required direction may be sufficient.
  • Where the identity of a physical object (here, a vehicle) is indispensable to the Crown's circumstantial case, the trial judge must ensure the summing-up addresses the need for the jury to be satisfied of that element beyond reasonable doubt, even if not in precisely prescribed terms.
  • Sufficient circumstantial evidence existed, including the complainant's detailed vehicle description, the registration plate inquiry, and the appellant's inconsistent accounts to police, to support the jury's verdict as reasonable.
  • An appellant who abandons one defence at trial (here, that no assault occurred at all) and confines the contest to a narrower issue (the identity of the perpetrator) may find the scope of the unreasonable verdict ground correspondingly limited.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61L, 90A (since repealed)
- Criminal Appeal Rules, r 4

Cases:
- Barca v The Queen (1975) 133 CLR 82
- Edwards v The Queen (1993) 178 CLR 193
- R v Galea and Yeo [2001] NSWCCA 270
- R v GJH (2001) 122 A Crim R 361
- Hodge's Case (1838) 168 All ER 503
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53
- Shepherd v The Queen (1990) 170 CLR 573
- Zoneff v The Queen (2000) 200 CLR 234