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Court of Criminal Appeal 14 February 2007

McC v Regina

[2007] NSWCCA 25

Assault & violence

Citation: McC v Regina [2007] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 14 February 2007
Judges: Spigelman CJ, Bell J, Howie J

Background

The appellant was convicted in the District Court of maliciously inflicting grievous bodily harm with intent and assault occasioning actual bodily harm. Both offences arose from a single incident in October 2003, in which two teenage girls babysitting the appellant's children were attacked with a car jack at his estranged wife's home in Port Macquarie. One victim suffered severe head injuries; the other could not identify her attacker.

The Crown case was entirely circumstantial. The appellant did not give evidence at trial, instead relying on an account he gave to police in which he claimed he had arrived at the scene after the attack and removed his children in a panic.

The appellant's two children, aged 10 and 8 at the time, were inside the house during the incident. Both had been interviewed by police and denied their father was the attacker. The older child, J, had also reportedly told her mother that "it wasn't daddy but another man." Neither child was called to give evidence at trial.

  • Whether the Crown Prosecutor's failure to call the appellant's two children as witnesses caused a miscarriage of justice.
  • Whether the supplementary ground of appeal (which had not been raised at trial) should be granted leave under rule 4 of the Criminal Appeal Rules.
  • Whether the framing of the ground, that the Crown had "refused or declined" to call the children, was made out on the evidence.

Decision

Bell J (with whom Spigelman CJ and Howie J agreed) refused leave to rely on the supplementary ground and dismissed the appeal. The court found that the factual foundation of the ground, as drafted, simply was not established. The Crown Prosecutor had actively sought clarification from defence counsel over three trial days as to whether the defence required the children to be called. On the third day, defence counsel confirmed he did not require either child to give evidence.

Because it was acknowledged at the hearing that the Crown had not refused or declined to call the witnesses, the ground of appeal as framed could not succeed. The court then considered whether, despite that concession, the failure to call J had nonetheless caused the trial to miscarry. Bell J examined the circumstances in detail, including the children's diagnoses of Asperger's syndrome, their mother's evidence about their limited capacity to understand the obligation to tell the truth, and the procedural context in which the question of calling them had arisen.

Bell J also considered a secondary complaint, that D McC's evidence about the children's right to object to giving evidence might have led the jury to infer that any evidence the children gave would have been adverse to the appellant. The court found this evidence was obscure and its purpose appeared to explain why the children had not been called. There was no basis to conclude it would have inclined the jury to reason against the appellant, and no application had been made at trial for any direction arising from it.

Applying the requirement under rule 4 of the Criminal Appeal Rules, and for all the reasons detailed, the court was not satisfied that the supplementary ground demonstrated a miscarriage of justice. Leave was refused.

Orders Made

  • Leave to rely on the supplementary ground of appeal refused.
  • Appeal dismissed.

Key Takeaways

  • A supplementary ground of appeal that was not raised at trial requires leave under rule 4 of the Criminal Appeal Rules before the Court of Criminal Appeal will consider it.
  • Where a Crown Prosecutor actively invited the defence to indicate whether it required witnesses to be called, and defence counsel confirmed those witnesses were not required, the ground that the Crown "refused or declined" to call them is not made out.
  • The obligation on the Crown to call witnesses is governed in part by the principle in R v Apostilides (1984) 154 CLR 563, as further considered in TKWJ v R (2002) 212 CLR 124. However, that obligation does not operate in isolation from the conduct of the parties at trial.
  • In dismissing the appeal, the court confirmed that incidental evidence explaining why witnesses were not called will not automatically give rise to an adverse inference against an accused, particularly where no direction was sought at trial.
  • No miscarriage of justice arises simply because potentially favourable witnesses were not called, where the defence itself indicated at trial that it did not require those witnesses.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW), ss 18, 65
- Criminal Appeal Rules, r 4

Cases:
- R v Apostilides (1984) 154 CLR 563 (High Court)
- TKWJ v R [2002] HCA 46; 212 CLR 124 (High Court)