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Court of Criminal Appeal 7 April 2003

Regina v SLACK

[2003] NSWCCA 93

Also reported as 139 A Crim R 314
Sexual offences
CRIMINAL LAW EVIDENCE CROSS EXAMINATION OF ACCUSED MATTERS COLLATERAL TO FACTS IN ISSUE WHERE BEYOND BOUNDS OF LEGITIMATE CROSS

Citation: Regina v Slack [2003] NSWCCA 93
Court: NSW Court of Criminal Appeal
Date: 7 April 2003
Judge(s): Sheller JA; Wood CJ at CL; Smart AJ

Background

The appellant was convicted in the District Court on two counts of aggravated sexual assault under s 61J(1) of the Crimes Act 1900, both alleged to have occurred on 1 September 2000. The complainant was an eleven-year-old girl who had been staying overnight at the appellant's home. He was convicted following a jury trial before Viney QC DCJ and sentenced to three years' imprisonment with a two-year non-parole period, to be served by way of periodic detention.

The appellant denied the charges and gave evidence at trial. The Crown cross-examined him extensively on two matters: first, his practice of attempting to hypnotise young girls (including his daughters and their friends) without parental knowledge, as part of a game; and second, his allowing girls under fifteen to watch M15+ rated films. Neither matter was directly related to whether the assaults had occurred.

The appellant appealed his conviction. The Crown separately appealed the sentence as inadequate.

  • Whether the Crown's cross-examination of the appellant strayed beyond the permissible limits for cross-examination on credit, by focusing on matters that were merely collateral to the facts in issue.
  • Whether that cross-examination was designed to prejudice the jury against the appellant rather than to legitimately test his credibility.
  • Whether the conduct of the cross-examination resulted in a substantial miscarriage of justice warranting quashing of the convictions.
  • Whether, if the convictions were quashed, a new trial should be ordered.

Decision

The Court of Criminal Appeal held unanimously that cross-examination on matters collateral to the facts in issue is confined to questions that legitimately go to the witness's credit. Questions that go no further than portraying a witness in a bad light, without genuinely bearing on whether their evidence should be believed, fall outside that boundary.

The court found that the Crown's questioning about hypnotising young girls and permitting children to watch age-restricted films was not directed at testing the truthfulness of the appellant's account of the alleged assaults. Instead, it was designed to cast the appellant as a person of discreditable character and to prejudice the jury against him. This went beyond the bounds of legitimate cross-examination on credit.

Sheller JA, with Wood CJ at CL and Smart AJ agreeing, concluded that the jury may well have weighed these collateral matters against the appellant when evaluating the core evidence. Even accepting that it was open to the jury to accept either the complainant's or the appellant's account of events, the diversion created by this impermissible cross-examination gave rise to a substantial miscarriage of justice.

The court declined to order a new trial. It noted that the appellant had regularly attended to serve his sentence of periodic detention without default, and that any retrial would be significantly delayed. In those circumstances, acquittals were entered rather than a retrial directed. The Crown's sentence appeal was rendered unnecessary by the quashing of the convictions.

Orders Made

  • Appeal allowed.
  • Convictions quashed; judgment and verdicts of acquittal entered.
  • Crown appeal against sentence dismissed.

Key Takeaways

  • Cross-examination on matters collateral to the facts in issue is confined to questions that genuinely go to a witness's credit; it does not extend to questions aimed at portraying the accused as a person of bad character or discreditable habits.
  • Where cross-examination is designed to prejudice the jury rather than to legitimately challenge credibility, it falls outside permissible bounds even if the matters raised are not entirely irrelevant to the accused's character.
  • A substantial miscarriage of justice can arise where impermissible cross-examination may have diverted the jury from an objective assessment of the evidence, even if the factual issues were otherwise open for the jury to determine either way.
  • In quashing convictions, the Court of Criminal Appeal declined to order a retrial where the accused had served his sentence without default and delay would be substantial, directing acquittals instead.
  • The principles applied draw on a line of authority extending from Harris v Tippett (1811) through to Bickel v John Fairfax & Sons Ltd (1981) and Wentworth v Rogers (No 10) (1987), affirming the collateral evidence rule as a safeguard against prejudicial cross-examination.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
- Evidence (Children) Act 1997 (NSW)

Cases:
- Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474
- Harris v Tippett (1811) 2 Camp 637; 170 ER 1277
- M v The Queen (1994) 181 CLR 487
- R v Dent (unreported, CCA, 14 March 1991)
- R v Evans (unreported, CCA, 24 March 1988)
- R v Eyles (1963) 47 Cr App R 260
- R v Johnston (1998) 45 NSWLR 362
- Wentworth v Rogers (No 10) (1987) 8 NSWLR 398
- Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213