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Court of Criminal Appeal 18 July 2006

Seymour v Regina

[2006] NSWCCA 206

Also reported as (2006) 162 A Crim R 576
Assault & violence
TRIAL NECESSARILY UNFAIR MISCARRIAGE OF JUSTICE. PRASAD DIRECTION ACCUSED ACQUITTED BY JURY

Citation: Seymour v Regina [2006] NSWCCA 206
Court: NSW Court of Criminal Appeal
Date: 18 July 2006
Judge(s): Hunt AJA (principal judgment), Simpson J, Rothman J

Background

The appellant was tried in the District Court alongside a co-accused on two charges: detaining a woman without consent with intent to assault her, and being armed with an instrument (bolt cutters and a blowtorch) with intent to commit an indictable offence. The complainant, who was a sex worker, alleged that after having sexual intercourse with the appellant she was prevented from leaving his apartment and threatened with having her toes cut off.

During the incident, when the complainant pleaded to be released, the appellant said: "I just got out of gaol five days ago, you'll dog me to the cops." This statement, which directly revealed a prior period of imprisonment, was not objected to by the appellant's own counsel. Counsel then went further, cross-examining the investigating police officer to draw out details of the appellant's criminal record, describing it as extensive and involving "a whole lot of street offences," and characterising the appellant as a "failed crim" and a "property crim."

The co-accused was acquitted following a Prasad direction (a direction informing the jury of their right to acquit at the close of the Crown case without hearing further evidence). The appellant did not give or call evidence, was convicted on both charges, and received a total sentence of five years' imprisonment with a non-parole period of three years and nine months.

  • Whether the conduct of defence counsel in eliciting detailed evidence of the appellant's criminal record rendered the trial unfair and caused a miscarriage of justice.
  • Whether, if the record evidence had been properly objected to, it should have been excluded under s 137 of the Evidence Act 1995 (which requires exclusion of prosecution evidence where its prejudicial effect outweighs its probative value).
  • Whether the verdicts were unreasonable, given the complainant's evidence and the co-accused's acquittal.
  • Whether the Prasad direction, given in circumstances where the jury may not have understood the legal basis for the co-accused's liability, contributed to the seemingly inconsistent verdicts.

Decision

Counsel's conduct and miscarriage of justice

The Court found there were at most two rationally defensible purposes for raising the criminal record: establishing that the appellant's recent gaol time was for only two weeks following a shoplifting conviction (to explain the gaol reference), and demonstrating, pursuant to s 110(3) of the Evidence Act, that the appellant had no prior convictions for violence against women. Either purpose could have been achieved by eliciting only that narrow information. No rational or responsible explanation existed for going further to emphasise the length of the record, the appellant's repeated criminal history, or his identity as a "property crim."

Had the evidence been objected to, the Court concluded it would have been rejected under s 137 of the Evidence Act given its substantial prejudicial effect in the context of the trial as a whole. Even setting aside the question of admissibility, counsel's decision to tender virtually the entire criminal record and to emphasise it in closing address deprived the appellant of a real chance of acquittal that was fairly open to him. That loss of chance constituted a miscarriage of justice, applying the principles in TKWJ v The Queen, Ali v The Queen, and Nudd v The Queen.

The Prasad direction and inconsistent verdicts

The Court explained the apparently inconsistent verdicts by finding that the jury had not been adequately instructed on the conceptual basis for the co-accused's criminal liability, specifically on how the co-accused's role in the events made him legally responsible for the appellant's actions. The Prasad direction was given without any accompanying directions of law on this point. The Court identified a broader danger in giving a Prasad direction where the jury may not yet understand the legal structure of the Crown's case against all accused.

Unreasonable verdict ground

The Court rejected the submission that the verdicts were unreasonable. The complainant's evidence was corroborated by her prompt complaints in a 000 call and to police, and by the presence of relevant items (gas cylinder, bolt cutters, studded collars) in the appellant's apartment. The defects in the complainant's evidence did not make her account so unreliable that acceptance of it was unavailable to the jury.

Orders Made

  • The appeal is upheld and the conviction is quashed.
  • A new trial is to be held.

Key Takeaways

  • A miscarriage of justice arises where defence counsel's conduct, lacking any rational or responsible explanation, deprives an accused of a real chance of acquittal that was fairly open on the evidence.
  • Where criminal record evidence is introduced by defence counsel for a legitimate but narrow purpose (such as proving absence of a particular type of offending), eliciting far more detail than that purpose requires may itself cause irreversible prejudice to the accused.
  • Under s 137 of the Evidence Act 1995, evidence whose prejudicial effect outweighs its probative value must be excluded, and that analysis applies even where the tender originates from the defence rather than the Crown.
  • A Prasad direction carries particular risks in a multi-accused trial where the jury has not been directed on the legal basis for each accused's liability. Giving the direction without those foundational directions of law may produce verdicts that appear inconsistent and that cannot fully serve the interests of justice.
  • Corroboration through prompt complaint and the physical circumstances of an alleged offence can support a finding that jury acceptance of a complainant's evidence was reasonably open, even where that evidence has identified weaknesses.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(2)(a), 114(1)(a)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), ss 110(3), 137

Cases
- TKWJ v The Queen (2002) 212 CLR 124
- Ali v The Queen (2005) 214 ALR 1
- Nudd v The Queen (2006) 225 ALR 161
- Hall v Braybrook (1955) 95 CLR 620
- Dawson v The Queen (1961) 106 CLR 1
- Phillips v The Queen (1985) 159 CLR 45
- Knight v The Queen (1992) 175 CLR 495
- M v The Queen (1994) 181 CLR 487
- Gipp v The Queen (1998) 194 CLR 106
- MFA v The Queen (2002) 213 CLR 606
- Regina v Prasad (1979) 23 SASR 161
- Regina v Pahuja (1987) 49 SASR 191
- Regina v Suteski (2002) 56 NSWLR 182
- Melbourne v The Queen (1999) 198 CLR 1
- Pfennig v The Queen (1995) 182 CLR 461
- Papakosmas v The Queen (1999) 196 CLR 297
- Wilde v The Queen (1988) 164 CLR 365
- Mraz v The Queen (1955) 93 CLR 493