Citation: KNP v Regina [2006] NSWCCA 213
Court: Court of Criminal Appeal, New South Wales
Date: 20 July 2006
Judge(s): McClellan CJ at CL, James J, Hall J
Background
The appellant was convicted in the District Court on nine counts of sexual offences, including indecent assault, homosexual intercourse, and acts of gross indecency, committed against his brother's stepson over a period between 1988 and 1990. The complainant was aged between nine and fifteen at the time of the alleged offences. The charges were not laid until many years later.
The Crown case rested entirely on the complainant's evidence. The trial also included evidence of a complaint the complainant had made to a friend, PS, around 1991, which became the subject of a significant admissibility dispute.
The appellant appealed against conviction on three grounds: the wrongful admission of the complaint evidence, a miscarriage of justice caused by the Crown Prosecutor's final address, and inadequate jury directions on the dangers of delayed complaint evidence.
Legal Issues
- Whether the trial judge erred in admitting evidence of the complainant's contemporaneous complaint to his friend PS as a prior consistent statement under s 108(3)(a) of the Evidence Act 1995 (NSW)
- Whether the Crown Prosecutor's final address to the jury caused a miscarriage of justice by seeking to pre-empt and diminish the effect of the trial judge's warnings, inviting speculation unsupported by evidence, and expressing personal opinion
- Whether the trial judge's directions on delay and lack of corroboration were adequate, or whether the language used reduced their significance in the minds of the jury
Decision
Ground 1: Admissibility of complaint evidence
The trial judge had initially refused to admit PS's evidence, but reconsidered after defence counsel cross-examined the complainant about his decision to travel alone with the appellant to Copeton Dam in 1991. That cross-examination invited the inference that the complainant had no real concern about the appellant's conduct. The Court of Criminal Appeal held that this conduct could constitute an implied representation inconsistent with the complainant's account of abuse, consistent with the approach taken in R v Selsby [2004] NSWCCA 381. A complaint made contemporaneously with the alleged offending was capable of responding to that implied representation and restoring the complainant's credibility under s 108(3)(a). The Court rejected the argument that leave under s 192 should have been refused simply because the Crown had first raised the Copeton Dam trip in evidence-in-chief, noting this was the inevitable consequence of the Crown's obligation to place all relevant evidence before the jury.
Ground 2: Crown Prosecutor's final address
The Court found that multiple aspects of the Crown Prosecutor's address were seriously inappropriate. His pre-emptive remarks seeking to limit the effect of the judicial warnings were described as tending to derogate from the trial judge's authority. His expression of personal opinions ("What I find difficult to believe is the suggestion") was characterised as a gross breach of the duty to present the Crown case impartially. Several passages invited the jury to speculate about matters for which there was no evidence, including the complainant's possible motivations for not disclosing the abuse and hypothetical family dynamics.
Notwithstanding those serious transgressions, the Court held that no miscarriage of justice resulted. Defence counsel had an opportunity to address the jury after the Crown, and the trial judge's summing up directly and clearly remedied the difficulties. The judge specifically directed the jury to disregard the impermissible "why would the complainant lie" reasoning, reminded the jury that the burden of proof rested entirely on the Crown, and contextualised the prosecutor's observations about children's behaviour as an appeal to common sense rather than evidence.
Ground 3: Adequacy of delay and corroboration warnings
The appellant contended that the trial judge's repeated references to being "obliged" to give warnings, and his remark that he should "get those out of the way," gave the directions a perfunctory character that diminished their force. The Court of Criminal Appeal rejected this ground. Introducing a direction by explaining that the law requires it tends to emphasise its seriousness rather than trivialise it. The approach was consistent with the Supreme Court Bench Book. Whether directions in any particular case fall short of adequate instruction depends on the full context of the summing up. No objection had been raised by trial counsel, and leave to raise the issue on appeal was declined.
Orders Made
- Appeal dismissed.
Key Takeaways
- A complainant's conduct, as well as oral statements, can constitute an implied prior inconsistent representation under s 108(3)(a) of the Evidence Act 1995 (NSW), opening the door to admission of a prior consistent complaint to restore credit.
- A contemporaneous complaint, unlike one made only after police involvement, may be sufficiently connected to the alleged events to relevantly rehabilitate a complainant's credibility after cross-examination based on that conduct.
- Crown prosecutors breach their obligations by seeking to anticipate and pre-emptively narrow the effect of judicial warnings in their final addresses; this function belongs exclusively to the trial judge.
- Expressions of personal opinion by a Crown Prosecutor in a final address constitute a gross breach of the duty to present the Crown case impartially, carrying the risk that jurors assess the prosecutor's views rather than the evidence.
- Serious misconduct by a Crown Prosecutor will not automatically produce a miscarriage of justice where defence counsel has addressed the jury in response and the trial judge's summing up directly and adequately remedies the problems created.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated