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Court of Criminal Appeal 16 April 2004

Teasdale v R

[2004] NSWCCA 91

Also reported as (2004) 145 A Crim R 345
Assault & violence
PRACTICE AND PROCEDURE CLOSING ADDRESS TO JURY WHERE NO CROSS WHETHER TRIAL MISCARRIED S8(1) CRIMINAL APPEAL ACT 1912 (NSW) WHETHER ORDER FOR NEW TRIAL APPROPRIATE

Citation: Teasdale v R [2004] NSWCCA 91
Court: Court of Criminal Appeal, New South Wales
Date: 16 April 2004
Judge(s): Tobias JA, Adams J, Smart AJ

Background

The appellant was an off-duty police officer who was convicted in the District Court at Newcastle of inflicting grievous bodily harm on a patron at a hotel in Hamilton, New South Wales. The Crown's case was that the appellant threw a schooner glass at the victim shortly after midnight on 9 November 2001, causing serious facial injuries. The appellant was one of approximately ten to twelve off-duty police officers present at the venue that night.

The Crown's case depended heavily on a single identifying witness, Mr Foster, who knew the appellant personally and claimed to have seen him throw the glass. Four other Crown witnesses, including the victim, were able to describe the glass-thrower but could not identify the appellant from a visual identification procedure conducted later. Two witnesses, including a fellow officer and a friend of the appellant, gave evidence that was potentially exculpatory.

The appellant was convicted after a five-day trial and sentenced to 18 months imprisonment, suspended on a good behaviour bond. He appealed against his conviction on two grounds, both arising from the conduct of the Crown Prosecutor's closing address.

  • Whether the trial miscarried because the Crown Prosecutor's closing address invited the jury to disbelieve Crown witnesses (the off-duty police officers) without any evidentiary foundation and without having cross-examined those witnesses on their credibility
  • Whether the trial judge's failure to direct the jury to ignore those improper assertions constituted a further miscarriage
  • Whether the verdict was unsafe or unsatisfactory given the state of the evidence, including discrepancies and reliance on a single identifying witness
  • Whether, if the conviction were quashed, the appropriate remedy was a new trial or a verdict of acquittal

Decision

On the first ground, the Court found that the Crown Prosecutor's closing address contained sustained and improper attacks on the credibility of the off-duty police officer witnesses. The Prosecutor invited the jury to disbelieve those witnesses despite having called them as Crown witnesses, never cross-examining them, and having no evidentiary basis to challenge their credibility. Under s 38 of the Evidence Act 1995, a party wishing to treat its own witness as unfavourable must first seek leave to do so. No such leave was sought here.

The Court held that the trial judge had a duty to direct the jury to disregard those improper and unsubstantiated assertions. The judge's failure to give such a direction compounded the problem. Because the Crown's case rested almost entirely on the jury accepting Mr Foster's evidence beyond reasonable doubt, the improper address materially affected the jury's assessment of the competing evidence. The trial miscarried.

On the second ground, the Court examined whether the verdict was unsafe or unsatisfactory. It noted discrepancies in the evidence, the fact that four witnesses described the glass-thrower without being able to identify the appellant, the presence of exculpatory evidence from two witnesses, and the effect of alcohol and the passage of time on witness recollection. The Court found a significant possibility that an innocent person had been convicted.

On remedy, the Court declined to order a new trial. It noted the long-standing practice against ordering a new trial where a sentence has been served or substantially served, the absence of special circumstances, the staleness of the evidence given the time elapsed, and the overall interests of justice. Accordingly, the Court entered a verdict of acquittal rather than ordering a retrial.

Orders Made

  • Appeal upheld
  • Conviction and sentence quashed
  • Verdict and judgment of acquittal entered

Key Takeaways

  • A Crown Prosecutor who invites the jury to disbelieve Crown witnesses without any evidentiary foundation, and without having cross-examined those witnesses, acts improperly and risks causing a mistrial.
  • Under s 38 of the Evidence Act 1995, a party seeking to challenge the credibility of its own witness must first obtain leave from the trial judge; closing address is not a vehicle for achieving the same result without that process.
  • A trial judge carries an obligation to direct the jury to disregard improper and unsubstantiated credibility attacks made in closing address, and failure to do so can itself constitute a miscarriage of justice.
  • Where a conviction is quashed, the Court of Criminal Appeal may decline to order a new trial when the sentence has been substantially served, the evidence has become stale through the passage of time, and no special circumstances favour a retrial.
  • The Court confirmed that where only one witness identifies the accused and that identification is the sole basis for conviction, discrepancies in the broader evidence base can render the verdict unsafe or unsatisfactory within the meaning of s 6(1) of the Criminal Appeal Act 1912.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 38
- Criminal Appeal Act 1912 (NSW), ss 6(1), 8(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases
- DPP (Nauru) v Fowler (1984) 154 CLR 627
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- R v Pedrana [2001] NSWCCA 66
- R v Hasenkamp [1998] NSWSC 40
- R v Kennedy [2000] NSWCCA 487
- R v Kneebone (1999) 47 NSWLR 450
- R v Stavrinos [2003] NSWCCA 339
- R v Walton [1999] NSWCCA 452