Citation: Peter John Reed v Regina [2006] NSWCCA 314
Court: NSW Court of Criminal Appeal
Date: 10 October 2006
Judge(s): Spigelman CJ; McClellan CJ at CL; Sully J
Background
The appellant was convicted by a jury in the District Court of one count of sexual intercourse with a child aged between 10 and 16 years who was under his authority, an offence under s 66C(2) of the Crimes Act 1900 (NSW). The complainant, who was 10 at the time of the offence and 14 at the time of trial, gave evidence that the appellant had committed digital penetration upon her while she was sleeping over at the home of the appellant's daughter.
The appellant had faced other related proceedings involving multiple complainants. He was ultimately acquitted in separate proceedings concerning another complainant after four trials, and a "no bill" was entered in relation to further proceedings involving additional complainants.
The appeal to the Court of Criminal Appeal raised three grounds: that the trial judge gave erroneous directions about witness statements, that the prosecution failed to disclose relevant material, and that the trial judge's directions on delay in complaint were unbalanced.
Legal Issues
- Whether the trial judge's directions in response to jury questions about witness statements constituted a material misdirection
- Whether the prosecution's failure to disclose a witness statement (and other material) prior to the close of evidence resulted in a miscarriage of justice
- Whether the trial judge's directions on delay in complaint were sufficiently balanced
Decision
Ground 2: Jury directions on witness statements. The court rejected the appellant's submission that the trial judge's response to jury questions implied that questions put to witnesses during cross-examination were themselves admissible as evidence of the assertions they contained. The court found that the jury questions were adequately explained by the references during trial to the complainant's police statement and another witness's statement. There was no basis to infer the jury believed a further statement by the appellant's former partner existed, and no relevant misdirection occurred.
Ground 3: Non-disclosure by the Crown. The central non-disclosure concerned a statement made on the last day of trial by the mother of the appellant's daughter (TF), supplied to the defence only after evidence had closed. The court acknowledged the Crown's obligation to disclose relevant material promptly. However, Spigelman CJ reasoned at length that the question was whether the withheld material had "sufficient relevance" to produce a miscarriage of justice. He concluded that TF's statement was largely consistent with the prosecution case, that it contained nothing materially beneficial to the defence that was not already available, and that cross-examination opportunities it might have opened were collateral or of limited weight. The court reached the same conclusion regarding an earlier TF statement from 2002 and an undocumented interview with another witness.
Ground 4: Directions on delay in complaint. The court found the trial judge's summing-up was not unbalanced in its treatment of the complainant's delay in reporting the offence. The judge had directed the jury to treat such complaint evidence with caution, had noted that prompt complaint had historically been considered significant, and had indicated that late complaint could reflect adversely on a complainant's credibility. These directions, while not including a specific warning under s 294(2)(a) of the Criminal Procedure Act 1986 that the absence of delay does not itself confirm the allegation, were found to be balanced overall and not productive of any miscarriage.
Sully J added a brief note agreeing with the Chief Justice but observing that, in the nature of individual criminal trials, there are sexual assault cases where testing surrounding detail is the only practical means by which an accused can properly challenge an accuser's evidence. He noted that detail which might appear tangential could, when properly tested, expose discrepancies or inadequacies in the Crown case.
Orders Made
- Appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that non-disclosure of prosecution material does not automatically constitute a miscarriage of justice; the withheld material must have "sufficient relevance" to the defence case to warrant that conclusion.
- Where a witness statement supplied late by the Crown is substantially consistent with the prosecution case and opens only collateral lines of cross-examination, it is unlikely to meet the threshold for establishing a miscarriage of justice.
- Directions on delay in complaint will be assessed as a whole; a trial judge's failure to give every prescribed direction does not necessarily render the summing-up unbalanced if other directions adequately protect the accused's position.
- A question put to a witness in cross-examination does not become evidence of the assertion embedded in it merely by virtue of the witness's response, and jury directions to that effect are not erroneous.
- Sully J's concurring note reinforces the principle, drawn from M v The Queen (1994) 181 CLR 487, that apparently peripheral detail in sexual assault cases may have genuine probative significance in testing the reliability of a complainant's evidence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66C(2)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), s 294(2)
Cases:
- Grey v The Queen [2001] 75 ALJR 1078
- Kilby v The Queen (1973) 129 CLR 46
- R v BWT (2002) 54 NSWLR 241
- R v Grey [2000] 111 A Crim R 314
- M v The Queen (1994) 181 CLR 487
- Lattouf (unreported, NSWCCA, 12 December 1996)