Citation: Peter James Wilson v Regina [2006] NSWCCA 217
Court: NSW Court of Criminal Appeal
Date: 2 August 2006
Judge(s): Handley JA, Adams J, Latham J
Background
The appellant was convicted in the District Court on two counts arising from sexual offences against CM, a nine-year-old boy, during a period in late 2002 and early 2003. The appellant had moved into the family home as a boarder and shared a bedroom with CM. The offences came to light after the appellant left the home and a letter he had written to CM was discovered beneath his bed.
CM was interviewed three times by police, and those interviews were recorded and tendered as exhibits at trial. CM also gave sworn evidence at trial. The jury acquitted the appellant on four counts, returned a verdict by direction on one count, and convicted on two counts (sexual intercourse with a child under 10, and an aggravated act of indecency).
The appellant appealed his convictions on several grounds, including that the jury's verdicts were inconsistent, that the Crown's address impermissibly raised consciousness of guilt, and that the admission of videotaped interviews as exhibits in the jury room caused a miscarriage of justice.
Legal Issues
- Whether the jury's acquittals on some counts were inconsistent with its convictions on the remaining counts, such that the convictions could not stand
- Whether the Crown Prosecutor's address improperly invited the jury to reason that the appellant's alleged lies and the complainant's motive to lie amounted to consciousness of guilt
- Whether admitting the videotaped interviews of the child complainant as exhibits, rather than replaying them in open court, constituted a procedural error causing a miscarriage of justice
- Whether CM was improperly permitted to refresh his memory from a document (a copy of a list he had compiled after initially speaking to police)
Decision
Inconsistent verdicts: The Court applied the test from M v The Queen (1994) 181 CLR 487, which asks whether it was "open to the jury" to reach the verdicts it did. The Court found that the acquittals and convictions were explicable on the evidence. Each count rested on discrete incidents described separately in CM's evidence, and the jury was entitled to assess each individually. No impermissible inconsistency was established.
Crown address and consciousness of guilt: The Court accepted that portions of the Crown's address came close to, or crossed, the line by inviting the jury to treat the appellant's denials and alleged lies as consciousness of guilt without adequate direction from the trial judge. However, the Court concluded that any irregularity did not produce a substantial miscarriage of justice in the circumstances, particularly given the strength of the other evidence, including the letter found beneath the appellant's bed.
Videotaped interviews as exhibits: Under the Evidence (Children) Act 1997, the preferred procedure was for videotaped interviews to be replayed in court rather than provided to the jury as exhibits. The Court acknowledged a departure from the procedure endorsed in R v NZ (2005) 63 NSWLR 628. However, it found no miscarriage of justice had occurred. The jury had access to transcripts of the interviews and, during deliberations, specifically requested the transcript of CM's cross-examination, indicating they were weighing the evidence critically rather than being unduly influenced by the recordings.
Memory refreshing: The Court found no error in allowing CM to refresh his memory from the copy list. The circumstances in which the list came to exist were explored in evidence, and the departure from ideal evidentiary procedure did not give rise to a miscarriage of justice on the facts.
Orders Made
- Appeal dismissed.
Key Takeaways
- Inconsistent verdicts will not automatically vitiate a conviction. The Court of Criminal Appeal confirmed that the operative question is whether the verdicts were ones the jury could rationally return, assessed against the discrete evidence referable to each count.
- Where a Crown address strays into consciousness of guilt reasoning without proper judicial direction, this may constitute error, but the Court will examine whether the irregularity caused actual substantial injustice rather than treating such error as automatically fatal.
- Departing from the procedure in R v NZ by placing videotaped child complainant interviews before the jury as exhibits (rather than replaying them in court) does not inevitably result in a miscarriage of justice. The Court assessed the practical impact on the trial, including the availability of transcripts and the jury's own conduct during deliberations.
- A child complainant's use of a document to refresh memory about a list compiled shortly after alleged offences will not necessarily constitute reversible error, even where the chain of custody of the original document is imperfect.
- In dismissing the appeal, the Court affirmed that each ground must be assessed against the totality of the trial circumstances, and that procedural irregularities require a demonstrated connection to actual injustice before they will displace a conviction.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Evidence (Children) Act 1997 (NSW)
Cases:
- M v The Queen (1994) 181 CLR 487
- R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278
- Edwards v R (1993) 178 CLR 193
- Zoneff v The Queen (2000) 200 CLR 234
- Dyers v The Queen (2002) 210 CLR 285
- Pfennig v The Queen (1995) 182 CLR 461
- R v Mosegaard [2005] NSWCCA 361
- R v Cox [1999] NSWCCA 62
- R v Hughes [2000] NSWCCA 3
- R v Smith [2000] NSWCCA 468
- R v Campbell [2005] NSWCCA 132
- Bolus v Regina [2006] NSWCCA 182
- Qualtieri v Regina [2006] NSWCCA 95
- R v DBG (2002) 133 A Crim R 227; [2002] NSWCCA 328
- R v RTGS [2005] NSWCCA 293
- R v AH (1997) 42 NSWLR 702
- R v VHP NSWCCA (unreported) 17 June 1997
- R v Uhrig NSWCCA (unreported) 24 October 1996