Citation: Sharyn Ann Munn v Regina; Thomas Miller v Regina [2006] NSWCCA 61
Court: Court of Criminal Appeal, New South Wales
Date: 24 March 2006
Judge(s): Spigelman CJ, Simpson J, Barr J
Background
Two appellants were jointly tried in the District Court on charges relating to alleged sexual offences against a seven-year-old girl. The first appellant was the girlfriend of the second appellant, who lived in a block of flats near the complainant's home. The charges included acts of indecency and multiple counts of sexual intercourse with the child.
The complainant's evidence was given primarily through videotaped police interviews, supplemented by closed-circuit television examination at trial. Both appellants denied all allegations; the second appellant gave evidence to that effect, while the first appellant did not testify.
Several issues arose during the trial that formed the basis of the appeals, including a juror's complaint about alleged intimidation by the accused, restrictions on cross-examination of the complainant, and the adequacy of warnings about delay in complaint.
Legal Issues
- Whether the trial judge erred in failing to discharge the jury after a juror complained of alleged out-of-court conduct by the accused and disclosed that complaint to other jurors during deliberations
- Whether receiving the verdicts without further inquiry into potential jury bias constituted a miscarriage of justice
- Whether defence counsel were wrongly prevented from cross-examining the complainant about her general sexual experience, particularly given the Crown's subsequent closing submission that she appeared sexually inexperienced
- Whether a warning was required about the effect of delay in complaint on the accused's ability to defend themselves
- Whether the convictions were unreasonable and unable to be supported by the evidence
Decision
Juror bias (Ground 1): The Court found that the trial judge's inquiry was insufficient. A juror had written a note alleging the accused had followed him and that cars had shone lights into his home, which he attributed to intimidation by the appellants. That juror disclosed the complaint to two other jurors before the jury had completed its deliberations. The Court concluded this raised a real possibility of apprehended bias affecting the jury, and that receiving the verdicts without further and more careful inquiry into what had been communicated, and its effect on the other jurors, resulted in a miscarriage of justice.
Cross-examination restrictions and Crown closing (Ground 2): The Court upheld this ground as a further basis for quashing the convictions. Defence counsel had been prevented from cross-examining the complainant about her general sexual experience. The Crown Prosecutor then used closing address to suggest the complainant appeared to lack sexual experience, an observation that worked directly against the appellants. Because the defence had been denied the opportunity to explore and potentially contradict this characterisation, a miscarriage of justice arose.
Delay warning (Ground 3): The Court considered whether a warning was required regarding the complainant's delay in making the complaint and its effect on the appellants' capacity to defend the charges. The judgment treats this as a live issue in the context of the appeals, though the primary grounds (juror bias and the cross-examination restriction) were sufficient to dispose of the appeals in the appellants' favour.
Unreasonable verdict (Ground 4): The Court rejected the submission that the convictions were unreasonable or unsupported by the evidence. Barr J held that the complainant's clear and repeated statements, if accepted by the jury as truthful and accurate, were sufficient to support the charges. The question of whether the complainant was credible was one properly open to the jury, and this ground was not made out.
Orders Made
- Both appeals allowed
- Convictions appealed from by both appellants quashed
- New trials ordered
Key Takeaways
- A juror's complaint attributing out-of-court conduct to the accused, disclosed to fellow jurors during deliberations, can give rise to apprehended bias sufficient to require discharge of the jury; receiving verdicts without adequately investigating the complaint's effect on other jurors risks a miscarriage of justice.
- Where a trial court restricts defence cross-examination on a topic, the Crown cannot then deploy that same topic in closing address to the jury to the accused's disadvantage; doing so may constitute a miscarriage of justice.
- A conviction is not necessarily unreasonable merely because complainant evidence was given through videotaped police interviews and attracted criticism; the court confirmed it remains open to a jury to accept such evidence if found truthful and accurate.
- The Court of Criminal Appeal ordered new trials rather than entering acquittals, consistent with its finding that the evidence was capable of supporting convictions if properly tested before an unaffected jury.
- Procedural fairness in jury management and evidentiary balance between Crown and defence are treated as serious concerns in child sexual assault trials, where restrictions on cross-examination carry particular significance.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW)
- Evidence (Children) Act (NSW)
- Jury Act (NSW)
Cases:
- Webb v The Queen (1993-1994) 181 CLR 41
- R v Marsland, Court of Criminal Appeal, NSW, 17 July 1991 (unreported)
- R v Rudkowsky, Court of Criminal Appeal, NSW, 15 December 1992 (unreported)
- Crampton v The Queen (2000) 176 ALR 369
- Longman v The Queen (1989) 168 CLR 79
- R v BWT (2002) 54 NSWLR 241
- R v NZ [2005] NSWCCA 278
- R v Yates & Ors [2002] NSWCCA 520
- M v The Queen (1994) 181 CLR 487