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Court of Criminal Appeal 15 February 2006

Magrin v Regina

[2006] NSWCCA 17

Sexual offences
CRIMINAL LAW CROSS EXAMINATION OF ACCUSED BY PROSECUTOR

Citation: Magrin v Regina [2006] NSWCCA 17
Court: New South Wales Court of Criminal Appeal
Date: 15 February 2006
Judge(s): Giles JA, Howie J, Hoeben J

Background

The appellant was convicted by a jury in the District Court at Parramatta on a charge of sexual intercourse with a child under ten years of age, following a trial in August 2004. The offence was alleged to have occurred on Christmas night 2002, when the complainant, then aged six, stayed overnight at the appellant's home. The appellant was sentenced to five years' imprisonment with a non-parole period of three years.

At trial, the appellant gave evidence denying the offence and claiming he was absent from his home on the night in question, spending time at a club and with a longstanding acquaintance. That acquaintance gave corroborating evidence. Two other men who had been present at the home could not be located by police, despite outstanding warrants for their arrest.

The appellant appealed against conviction on a single argued ground: that the Crown Prosecutor's cross-examination of him concerning his alibi evidence caused a miscarriage of justice.

  • Whether the Crown Prosecutor's cross-examination of the appellant amounted to a breach of his right to silence.
  • Whether that cross-examination had the effect of improperly shifting the onus of proof onto the appellant.
  • Whether the absence of the two Smith brothers, who could not be located, was used against the appellant in a way that caused a miscarriage of justice.
  • Whether any error in the conduct of the trial was cured by the trial judge's directions to the jury.

Decision

The Court unanimously dismissed the appeal, with Howie J delivering the principal judgment and Giles JA and Hoeben J agreeing.

The ground of appeal evolved during oral argument. What was initially framed as a complaint about the alibi cross-examination was ultimately characterised as a challenge based on the appellant's right to silence and a suggested misplacement of the onus of proof. The concern centred on the Crown's questioning and address to the jury regarding the failure of the Smith brothers to appear as witnesses, and whether this was used to draw an adverse inference against the appellant.

The Court found that the trial judge's directions on the onus of proof were ample and clear throughout the trial and in the summing-up. The jury was expressly directed that they could only convict if satisfied beyond reasonable doubt that the complainant was telling the truth, and that the delay in complaint had affected the appellant's ability to investigate the allegation and locate the Smith brothers. The trial judge also directed the jury that the appellant was not responsible for the Smith brothers' absence, as police had attempted to locate them without success.

The Court also applied the principle that, where defence counsel fails to press objections or seek further directions after an objection is overruled, it cannot be assumed that any direction would have been insufficient. In this case, defence counsel objected to one question on relevance grounds but made no further complaint. The Court was satisfied that, in light of all directions given, there was no real risk the jury misused the cross-examination or the Crown's closing address to reverse the onus of proof or otherwise penalise the appellant for the absence of the Smith brothers.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that robust directions on the onus of proof and alibi can be sufficient to cure any potential prejudice arising from cross-examination that touches on a accused's right to silence.
  • Where a trial judge clearly directs the jury that the accused bears no responsibility for the absence of potential witnesses, and that conviction requires proof beyond reasonable doubt, the risk of the jury misusing that absence is substantially reduced.
  • A failure by defence counsel to press objections or seek further directions after an initial objection is overruled is relevant to the assessment of whether a miscarriage occurred; it is not enough to object once and then remain silent.
  • No miscarriage of justice was established merely because Crown cross-examination and address referred to the absence of persons who could have given relevant evidence, where the circumstances of that absence were properly explained to the jury.
  • The court's analysis was confined to the particular facts and directions in this trial; the decision does not establish any broad rule about the permissibility of such cross-examination in all cases.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61A, 61M(2)

Cases:
- Dyers v The Queen (2002) 210 CLR 285
- Maiden and Petty v The Queen (1991) 173 CLR 95