Citation: ALRAMADAN v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2007] NSWCCA 322
Court: NSW Court of Criminal Appeal
Date: 23 November 2007
Judge(s): Basten JA; Latham J; Rothman J
Background
The appellant was a general practitioner working in a rural town in central New South Wales. A 50-year-old female patient alleged that during a surgery visit on 8 December 2005, the appellant administered diazepam (a sedative drug) without her proper consent and then sexually assaulted her while she was physically incapacitated by its effects.
The appellant was tried before a jury in the District Court and convicted on three counts: administering a stupefying drug, committing an act of indecency in circumstances of aggravation, and having non-consensual intercourse in circumstances of aggravation. He was sentenced to a non-parole period of ten years imprisonment with a two-year balance of term.
At trial, the appellant sought to call two expert witnesses, identified as Dr Nicholls and Dr White, whose evidence the trial judge rejected in advance. The appellant's appeal to the Court of Criminal Appeal centred entirely on that rejection.
Legal Issues
- Whether the trial judge erred in refusing to admit the expert evidence of Dr Nicholls and Dr White
- Whether leave to appeal was required, and if so whether it should be granted
- Whether the error, if established, amounted to a substantial miscarriage of justice warranting the quashing of the convictions under section 6(1) of the Criminal Appeal Act 1912 (NSW), or whether the proviso applied to preserve them
Decision
On the rejection of the expert evidence, the Court unanimously found that the trial judge erred. Basten JA, with Latham and Rothman JJ agreeing, held that the evidence of both Dr Nicholls and Dr White was relevant within the meaning of section 55 of the Evidence Act 1995 (NSW), and that no adequate reason had been given for its exclusion. Rothman J went further, noting that the evidence may have been highly probative, and characterised the exclusion as both a wrong decision on a question of law and a miscarriage of justice.
On leave to appeal, Basten JA and Latham J held that because the error was not one of law alone, leave was required and should be granted. Rothman J agreed that the ground did not involve a question of law alone and that leave was therefore necessary, but took a different view on whether it should be granted.
On the proviso, the majority (Basten JA and Latham J) applied the approach confirmed by the High Court in Weiss v The Queen (2005) 224 CLR 300. Assessing the whole of the evidence, including the written reports of the excluded experts, they concluded that the rejected evidence could not have significantly affected the jury's assessment of the appellant's credibility and would not have altered the outcome. No substantial miscarriage of justice had actually occurred, and the appeal was dismissed.
Rothman J dissented on the leave and proviso questions. His Honour expressed concern that it was the experts' oral evidence, not merely their written reports, that had been excluded, and the Court had not seen what that oral evidence would have been. Without the full excluded evidence before the Court, a proper assessment under the proviso could not reliably be undertaken. On that basis, Rothman J would have refused leave to appeal, preserving the appellant's ability to mount a further appeal once the experts' evidence was properly placed before the Court.
Orders Made
- Leave to appeal against conviction granted, if required
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that wrongly excluding relevant expert evidence constitutes an error at trial, but that error does not automatically lead to the appeal being allowed.
- Under section 6(1) of the Criminal Appeal Act 1912 (NSW) and the approach in Weiss v The Queen, an appellate court must assess the whole of the evidence and determine whether any substantial miscarriage of justice actually occurred before quashing a conviction.
- In dismissing the appeal, the majority held that excluded expert evidence with limited probative force and no material impact on credibility assessments will not satisfy the threshold of substantial miscarriage of justice.
- Rothman J's dissent identified a procedural difficulty: where oral expert evidence is excluded, relying solely on the experts' written reports may not give an appellate court a sufficient basis to apply the proviso, because unexplained reports may not capture what the live evidence would have been.
- Expert evidence is relevant under section 55 of the Evidence Act 1995 (NSW) if it could rationally affect the assessment of a fact in issue; a trial judge who rejects such evidence without articulating a sound reason commits a legal error, even if that error ultimately does not change the verdict.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), ss 46, 55, 56, 79, 80, 135, 137
- Crimes Act 1958 (Vic), s 568
Cases:
- Weiss v The Queen (2005) 224 CLR 300
- Conway v The Queen (2002) 209 CLR 203
- MFA v The Queen (2002) 213 CLR 606
- M v The Queen (1994) 181 CLR 487
- Darkan v R (2006) 227 CLR 373
- MWJ v The Queen (2005) 80 ALJR 329
- Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
- Hannes v Director of Public Prosecutions (Cth) (No. 2) [2006] NSWCCA 373
- R v Liristis [2004] NSWCCA 287
- Rend v The Queen [2006] NSWCCA 41
- R v Birks (1990) 19 NSWLR 677
- Williams v The Queen (1986) 161 CLR 278
- R v Grills (1910) 11 CLR 400
- Bray v Ford [1896] AC 44