Citation: Ian Jackson v Regina [2005] NSWCCA 411
Court: New South Wales Court of Criminal Appeal
Date: 30 November 2005
Judge(s): Spigelman CJ; Sully J; Hulme J
Background
The appellant was convicted in the District Court at Newcastle following a retrial before Armitage DCJ and a jury. He faced three counts: sexual intercourse without consent against one complainant (KG), and both indecent assault and sexual intercourse without consent against a second complainant (JM). The jury convicted him on all three counts.
The trial had followed an earlier proceeding in which the jury had been unable to reach a verdict. At the retrial, coincidence evidence from each complainant was admitted without objection, and the defence rested its case entirely on attacking the complainants' credibility rather than calling any evidence.
On appeal, the appellant sought to challenge both the admission and direction on the coincidence evidence, and the adequacy of the trial judge's directions to the jury on the issue of consent.
Legal Issues
- Whether the coincidence evidence from each complainant was properly admitted in the charge involving the other, having regard to sections 98 and 101 of the Evidence Act 1995
- Whether the trial judge's directions to the jury on consent were adequate, specifically whether the judge was required to explicitly link those directions to the relevant evidence in the case
- Whether leave to raise grounds of appeal under rule 4 of the Criminal Appeal Rules should be granted where neither ground had been raised at trial
Decision
The Court refused leave to appeal on both grounds. Rule 4 of the Criminal Appeal Rules requires leave where a ground of appeal was not raised at trial, and the Court found no basis to grant it in either case. Critically, no affidavit from trial counsel was tendered to explain why the points had not been taken at trial.
On the coincidence evidence ground, Spigelman CJ observed that the similarities between the two incidents were strong and capable of justifying admission. The judge had proposed and discussed his proposed direction with counsel before delivering it, and it was approved without any request for redirection. The Court emphasised that trial counsel's decision not to press this point represented a perfectly reasonable judgment on contested evidentiary matters, and that the Court of Criminal Appeal should be slow to interfere with such decisions under rule 4.
On the consent directions ground, the trial judge had directed the jury that the Crown bore the onus of disproving consent beyond reasonable doubt, and then canvassed the relevant evidence in detail. The appellant's complaint was that the judge should have expressly linked the legal directions on consent to specific pieces of evidence. Sully J, with whom Hulme J agreed, found that this complaint was answered by the principles stated in R v Williams (1990), which remain good law and which required the ground to be dismissed.
Spigelman CJ also noted that, given the defence strategy of attacking credibility rather than relying on consent, counsel may well have made a deliberate tactical choice not to invite the judge to focus the jury on consent evidence that was described as "tenuous at best."
Orders Made
- Appeal against conviction dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that leave under rule 4 of the Criminal Appeal Rules will be refused where grounds of appeal were not raised at trial and no adequate explanation, typically by way of affidavit from trial counsel, is provided for the omission.
- A trial judge's directions on coincidence evidence will not constitute a miscarriage of justice where they were proposed to and approved by counsel in advance, and no redirection was sought.
- Where coincidence evidence involves strong similarities between two bodies of evidence, its admission and the weighing of probative value against prejudicial effect are classically matters of judgment, and a wide range of conclusions may be reasonably open.
- Under the principles affirmed in R v Williams (1990), a trial judge is not necessarily required to explicitly link directions of law on consent to individual pieces of evidence, provided the evidence is otherwise canvassed adequately in the summing up.
- In dismissing the appeal, the Court observed that discouraging counsel from raising every conceivable point at trial generally serves the interests of accused persons, as juries may react adversely to excessive interruptions.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 98, 101
- Criminal Appeal Rules, rule 4
Cases:
- R v Williams (1990) 50 A Crim R 213